Legal Issues
Special Education and
Adapted Physical Education
Sources of Law

Constitutional
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Statutes



federal
state
federal
state
Case or Common
Law


federal
state
Constitutional Law

This is the fundamental
laws of a nation or
state

Sets fundamental
rights

Example - 14th
amendment to US.
Constitution provides
for equal protection
Statutes




Are an act of the legislative
body.
Basically, it is a law that
the Congress or a state
legislature has passed
Statutes must be consistent
with constitutions.
Example - IDEA
Regulations to Statutes

Guidelines written by
agency charged with
implementing and
enforcement of statute

Written in greater detail
than the law


OSERS - IDEA
OCR- Section 504
Case Law

Decision of the courts
that interpret:



constitutional law
statutes
There are Federal
and State Courts
Federal Courts

Trial or District Court

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Circuit Court of Appeals


multiple states
Supreme Court


within one state
national
decisions are binding only
within a court’s jurisdiction
State Courts

Trial Court

Appellate Court

Court of Last Resort
Legislative History of
Special Education
Constitutional Foundations

1900's - 14th Amendment



1954 - Brown v. Board of Educ. (Topeka,
KS)


Equal protection and due process
Right to liberty - confinement in an institution
curtails on liberty
segregation of races in public schools is illegal
(separate but equal is not equal)
1971 - PARC v. Commonwealth of PA

every child in state guaranteed free public
education; parents given due process before
change in plan.
Legislative History of Special
Education

1961
Train teachers of the deaf


1965 PL 89-10 (Elem. and Sec.
Education Act)


Programs for economically disadvantaged
1966


PL 87-276 (Special Education Act)
Created Bureau of Ed. for the Handicapped
1973
Act.)

PL 89-750 (Amendments to E & S)
PL 93-112 Section 504 (Rehab.
Cannot discriminate against people with
disabilities
Legislative History (cont.)

1975
PL 94-142
 Education for All Handicapped Children Act

1983
PL 98-199 (Amendments to EHA)
 re-emphasis on birth to 5-years.

1986
PL 99-457 (Amendments to EHA)
 emphasis on birth to 2 years; training of parents

1990
PL 101-476 (Amendments to EHA)
 changed name to IDEA; emphasis on transition

1990
PL 101-336 (Americans with Disab. Act)
PL 93-112: Section 504 of
Rehab. Act


General rehabilitative needs of individuals
with disabilities
Civil rights of individuals with disabilities


based on 5th & 14th Amendments to U.S.
Constitution (equal protection and due process)
unfunded mandate - no money appropriated
Sec. 504 - Equal Opportunity
"No otherwise qualified handicap individual
in the U.S....shall, solely by reason of
handicap, be excluded from participation in,
be denied the benefits of, or be subjected
to discrimination under any program or
activity receiving federal financial
assistance."
Sec. 504 - Provisions


Broad definition of disability (compared to IDEA)
Includes education, social services, & employment
 Education:
• barrier-free accessibility
• appropriate accommodations


Most institutions (Universities, state agencies, large
corporations) have a 504 Compliance Officer
Office of Civil Rights (OCR) handles complaints
Sec 504 and PE/Athletics
“Separation or differentiation with respect to
physical education and athletic activities is
permissible only if qualified students are
also allowed opportunities to compete for
regular teams or participate in regular
activities. Most handicapped students are
able to participate in one or more regular
physical education and athletic activities.
For example, a student in a wheelchair can
participate in a weight training class (Stein,
1978, p. 149).
Sec. 504 (cont.)
“Cannot bar a person with artificial limbs or
one eye or kidney from participating in
sports competition. Likewise, athletic
events in public places must be accessible
to all spectators, including those who use
wheelchairs.”
Litigation and Sec. 504

Age rule in high school sports?

Cases in Michigan and Missouri upheld rule
Case in Texas said had to be case by case basis

Case in Colorado recently


One kidney or one eye rule?

Cases found such rules violated Sec. 504
PL 101-336:
Americans with Disabilities Act

Who is Protected?


qualified individual with a disability
Scope of ADA's Coverage

Employment
• cannot discriminate against because of the disability
• reasonable accommodations
• employer cannot make presumptions as to what a
person with a disability can or cannot do
Scope of ADA (cont.)

Public Transportation and Public Services
• local, state, and federal agencies

Public Accommodations and Services
• cannot discriminate in the full, equal enjoyment of
goods, services, facilities, privileges, advantages, or
accommodations (includes private accommodations and
services).
• requires reasonable modifications to establishments

Telecommunications
Reasonable Accommodations

Reasonable accommodations

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Undue hardship

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

made for otherwise qualified individual
made on a case by case basis
does not impose undue hardship
action that would be significantly difficult or expensive
fundamentally alter program
made on a case by case basis
Remedies for violations


violations related to employment rests with
EEOC
other violations rests with Department of
Justice/OCR
ADA and Youth Sports

Must provide opportunity to participate in
programs with no skill criteria

Must provide opportunity to try-out in
programs with skill criteria

Cannot utilize eligibility criteria that
screens out individuals with disabilities
ADA and Youth Sports (cont.)

Must provide opportunity to participate in
regular sports programs, even if special
programs are available.

Auxiliary aids and services must be
available unless:
 causes undue hardship
• significantly difficult to do
• fundamentally alter the program
Litigation and ADA

Little league baseball coach in a
wheelchair not allowed to coach
from sideline

court found such a rule violated ADA
PL 94-142: Education for all HC
Children Act (EHA)

Purpose
guarantee "free appropriate public
education" to all children with
handicaps
 assure rights of children with handicaps
and their parent

Definitions in EHA

definition of handicap:
“...those children evaluated...as being mentally
retarded, hard of hearing, deaf, speech
impaired, visually handicapped, seriously
emotionally disturbed, orthopedically impaired,
other health impaired, deaf-blind, multihandicapped, or as having specific learning
disability...”
“...who because of those impairments needs
special education and related services”
Definitions (cont.)

Definition of free appropriate education:
“...special education and related services which:
• are provided at the public expense under public
supervision without charge
• meet the standards of the state educational agency
• include preschool, elementary, or secondary education
in the state involved,
• are provided in conformity with an individualized
program
Litigation Regarding “Appropriate”

1982 - Board of Education v. Rowley
Only special education case to reach
federal supreme court
 Child with hearing impairment did not
need an interpreter because she was
benefiting from her education

• provide appropriate education - not best
education
• some states have higher standards
(maximum)
Definitions (cont.)

definition of special education:
1. Special education means specially designed
instruction, at no cost to the parent, to meet the
unique needs of a handicapped child, including
classroom instruction, instruction in physical
education, home instruction, and instruction in
hospitals and institutions.
2. The term includes speech pathology, or any other
related service, if the service consists of specially
designed instruction ... and is considered special
education rather than a related service under state
standards.
3. A child is not handicapped unless s/he needs special
education. If a child does not need special education,
cannot get related services.
Definitions (cont.)

Definition of Physical Education:
(i) The term means the development of:
(A) physical and motor fitness
(B) fundamental motor skills and patterns
(C) skills in aquatics, dance, and individual and group
games and sports (including intramural and lifetime
sports
(ii) The term includes special physical education,
adapted physical education, movement
education, and motor development
Definitions of Physical Education
(Cont.)
(a) General - P.E. services, specially designed
if necessary, must be available to every HC
child.
(b) Regular P.E. - Every HC child must be
afforded the opportunity to participate in
regular physical education unless:
(1) child is enrolled full-time in a separate
facility, or
(2) child needs specially designed physical
education as prescribed in the child's IEP.
Definitions of Physical Education
(Cont.)
(c) Special Physical Education - if
specially designed physical education is
prescribed in a child’s IEP, the public agency
responsible for the education of that child shall
provide the services directly, or make
arrangements for it to be provided through
other public or private programs.
(d) Education in Separate Facilities the public agency responsible for the education
of a handicapped child who is enrolled in a
separate facility shall insure that the child
receives appropriate physical education
services in compliance with para. (a) and (c) of
this section.
Definitions (cont.)

Definition of Related Services:
"....transportation and such developmental,
corrective, and other supportive services as are
required to assist a handicapped child to
benefit from special education, and includes:
speech pathology/audiology, recreation, psychological
services social work, physical therapy, health services,
occupational therapy artistic/cultural programming
* if they are required to assist child benefit
from special education.
Definitions (cont.)

Definition of Recreation:
(i) assessment of leisure functioning
(ii) therapeutic recreation services
(iii) recreation programs in schools and
community agencies
(iv) leisure education
Definitions (cont.)

Definition of Non-academic
Services
(a) afford equal opportunity for
participation
 (b) includes athletics and recreation

Definition of (LRE)
"... to the maximum extent appropriate, children
with disabilities...are educated with children
without disabilities, and that special classes,
separate schooling, or other removal of children
with disabilities from regular educational
environments occur only when the nature or
severity of the disability is such that education in
regular classes with the use of supplementary aids
and services cannot be achieved satisfactorily."
Continuum of LRE options
"...a continuum of alternative placements is
available to meet the needs of children with
disabilities...including instruction in regular
classes, special classes, special schools, home
instruction, and instruction in hospitals and
institutions."
"...placing children in the LRE does not mean
mainstreaming or placing all children into
regular classes...placed in most normal
environment in which they can potentially
succeed...The LRE will be different for each
child."
Physical Education Placement
Options
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Regular physical education - no support
Regular physical education - consult from APE
APE conducted within regular physical education
Part-time regular physical education; part-time
elsewhere (flexible schedule)
Part-time regular physical education; part-time
elsewhere (fixed schedule)
Full-time separate program in regular school
Full-time separate program in special school
Court Cases Related to LRE

Roncker (OH, 1983)

Daniel (TX, 1989)

Greer (GA, 1991)

Oberti (NJ, 1993)

Holland (CA, 1994)

Klinton (TX, 1993)
Roncker v. Walters (Ohio)
1983


Case Law
Principal of Portability


What makes special placement so
special?
Can this “specialness” be brought
to regular class?

Benefits to child?

Disruptions?
Daniel R.R. v. State Board of
Education (Texas) 1989 “Daniel
R.R. Test”

Can education in regular
classroom, with
supports, be achieved
satisfactorily?

If it cannot, has the
school “mainstreamed”
the child to the
maximum extent
appropriate?
Daniel R.R. (Cont.)

Can Education in Regular
Class, with Support, be
Achieved?



Did school system take steps to
include student?
Will student receive any
educational benefit?
Were there any negative
effects on other children?
Other Important Court Cases

Greer v. Rome (GA) City
School District (1991)
 Predetermination?
 Non-academic
benefit?
 Financial burden?

Oberti v. Borough of
Clementon (NJ) School District
(1993)
 Burden
of proof?
 Supplementary aids?
 Modifying curriculum?
Other Important Court Cases
(cont.)

Sacramento (CA) City
Unified School District v. R.
Holland (1994).
 Educational
benefit (same?)
 Non-academic benefit
 Effects on teacher and other
children
 Cost of supplementary aids

Klinton v. Corpus Christi
(TX) ISD (1993)
 Behavior
problems
PL 99-457 (Amendments to
EHA):

Title I (or Part H in IDEA) - Infants and
Toddlers


Focus on young children (infants and toddlers
birth - 3)
Children who are eligible may receive early
intervention services which should have the
following characteristics:
• services are provided under public
supervision
• they are provided at no cost (occasional
exceptions)
PL 99-457 (cont.)

Services include (but not limited to):






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family training and counseling
special instruction
speech pathology, occupational therapy, physical
therapy
case management
medical evaluation, and diagnosis and screening
services are provided by qualified personnel
services must conform to individualized
family service plan (IFSP)
Individual Family Service Plan




Replaced IEP
Developed by the family and staff
Based on multidisciplinary evaluation of
child and family
Includes services needed to enhance
child's development and family's
capacity to meet child's needs
PL 101-476: IDEA


1990 Reauthorization of EHA
Key changes:




Changed term from handicap to disability
New eligibility category for "autistic condition"
New category for traumatic brain injury
Transition services: "coordinated set of
activities which promotes movement from
school to post-school activities”
IDEA (cont.)

Rehabilitation counseling is now a service on
IEP

Greater availability of assistive technology

Recreation therapy reemphasized

Social work services reemphasized

LRE - increase insistence on seeing special
education services in the LRE.
IDEA Amendments of 1997
PL 105-17

Most important changes:




New focus on IEPs as a tool for enhancing the
child’s involvement/progress in the general
curriculum.
Involvement of general education teachers
Discipline
Change in definition concerning ADD/ADHD
IDEA ‘97 and the IEP

IEPs Must Now Include Statements of:




PLOP including how the child’s disability affects
involvement/progress in the general curriculum
annual goals that will enable child to be involved in
and progress in the general curriculum
SPED and related services and supplementary aids
Modifications or supports to help child advance in
annual goals, be involved/progress in general
curriculum, and participate in extra curricular
activities.
IDEA ‘97 (continued)

Regular Education Teacher Involvement




If the child participates (or will participate) in a general
education environment, the IEP team must include at least
one of the student’s general education teachers.
The general education teacher must participate in the
development, review, and revision of the child’s IEP
The general education teacher must also help determine
appropriate positive behavioral interventions and strategies
for the child, as well as any supplementary aids, program
modifications, and supports.
Don’t have to (a) attend all meetings, (b) stay for entire
meeting, or (c) discuss matters they are not involved in.
IDEA ‘97 (continued)

Discipline





services must continue during periods of
disciplinary removal (only after first 10 days)
conducting behavioral assessments and
developing behavioral intervention plans
manifestation determination (only required if
removal constitutes a change of placement)
change of placement meeting required (if child is
removed for more than 10 days)
cannot continually remove a child for periods of
10 days (this shows a pattern of misconduct)
IDEA ‘97 (continued)

ADD and ADHD


ADD and ADHD have been listed as conditions
that could render a child eligible under the
“other health impaired” (OHI) category
The term “limited strength, vitality, or
alertness” in the definition of OHI, when
applied to children with ADD/ADHD, includes a
heightened alertness to environmental stimuli
that results in limited alertness with respect to
the educational environment.
Litigation and Special Education

1972 - Larry B. v. Riles (CA)


IQ cannot be used as sole basis for placing
children in special education
1979 - Armstrong v. Kline (PA)

child with a severe disability who regresses
over long periods of layoff are entitled to
extended school year through summer
Litigation and SPED (cont).

1984 - Irving Indep. School District v. Tatro
(TX)


1986 - Doe v. Maher (CA)


have to provide CIC - it is a supportive service since without
it child could not attend school and subsequently not benefit
from spec. education
child with a disability cannot be excluded from school for
misbehavior that is related to disability
1987 - Bevin v. Wright (PA)

school district is not required to pay for nursing and related
health services - care was so intense it needed to be provided
by nurse or doctor and was life-threatening
Litigation and SPED (cont).

1999 - Cedar Rapids Community School
District v. Garret F.



Supreme Court ruled that public schools must
provide a wide array of medical care for children
with disabilities attending classes.
Must provide assistance necessary to keep a
student in school, short of a physician’s care
Related services and care must be:
• essential to the child’s ability to attend class
• could be provided by a school nurse or other qualified
individual,but not a physician