Federal Laws Governing Special Education Law

Parents have many more rights under Section 504 than under the IDEA because Section 504 provides for very specific protections.

• Individuals with Disabilities Education Act ("IDEA"); codified at 20 U.S.C. [United States Code] § 1400 with regulations appearing at 34 C.F.R. [Code of Federal Regulations] § 300.
   
• Section 504 of the Rehabilitation Act; codified at 29 U.S.C. § 794 with regulations appearing at 34 C.F.R. § 104
   
• Family Educational Rights and Privacy Act ("FERPA"); codified at 20 U.S.C. § 1232g with regulations appearing at 34 C.F.R. § 99 (FERPA gives parents of all students the right to inspect all information maintained by the school district in connection with their child)
   
• Americans with Disabilities Act ("ADA"); codified at 42 U.S.C. § 12101 with regulations appearing at 28 C.F.R. § 35.
   
• Technology Related Assistance For Individuals With Disabilities", default", codified at 29 U.S.C. Sec. 2109 (this statute, which broadly defines the term "assistive technology," can be relied upon to seek computer "touch screens, specialized recording and playback devices (e.g. "Language Master") and essentially all other devices, items and systems which are used to "...increase, maintain or improve functional capabilities of individuals with disabilities").
   
• No Child Left Behind Act

Title 34 -- Individuals With Disabilities Education Act (IDEA)

Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A); see also Gadsby v. Grasmick, 109 F.3d 940, 942 (4th Cir. 1997).

The IDEA requires all states receiving federal funds for education to provide to each child with a disability between the ages of three and 21 a free appropriate public education that is specifically designed to meet that child's needs. 20 U.S.C. § 1412(a)(1)(A). Congress intended that the IDEA's goals would be accomplished through the public education system. However, the IDEA allows for private school placement at public expense if the school district lacks the capacity or refuses to provide the services necessary for the child to receive a free appropriate public education. Id. § 1412(a)(10)(C); see School Comm. Of the Town of Burlington v. Department of Educ. Of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996 (1985) (holding that parents may seek reimbursement from the school district for unilateral private placement when the school district's IEP is inadequate and the private placement is appropriate).

For a school district to sustain its burden of proving that its IEP was reasonably calculated at the time of creation to provide some educational benefit, the school district cannot simply provide conclusory statements that the IEP was adequate. The school district must show the following concrete information. First, the school district must show that it set forth the proper elements of the IEP. The IEP must include a statement containing: (1) the child's present levels of educational performance, including how the child's disability affects the child's involvement and progress in the general curriculum; (2) measurable annual goals, benchmarks or short-term objectives; (3) the special education and related services that will be necessary to meet the annual goals, including the projected date for the beginning of the services, and the frequency, location, and duration of those services; (4) the extent of the child's participation with non-disabled children; (5) any modifications in the administration of state assessments of student achievement; and (6) criteria for evaluating whether the annual goals and short-term objectives are being met. See 20 U.S.C. § 1414(d)(1)(A).

Second, the school district must show that the annual goals, benchmarks, and short-term objectives set forth in the IEP were reasonable. The goals must be realistic and attainable, yet more the trivial and de minimis. The school district can show that the goals were reasonable through the use of experts, who may include administrators, consultants, teachers, mentors, and psychologists. Those experts should offer opinions, supported by materials and experience, as to what are reasonable goals for a child of similar age and disability. For example, there may be literature that offers examples of concrete tasks and skills that are appropriate for an eight year old child with autism. In the alternative, experts may state an opinion that a certain task is a reasonable and attainable goal for a child with a certain disability.

In developing reasonable annual goals, the Board must, as required by statute, look to the standards of the state educational agency. See id. § 1401(8). The school district must consider the state educational standards for a child of similar age and grade. If the goals for the disabled child are not similar to the objective state criteria for a child of similar age and grade, the school district must state the reasons for the discrepancy. Disabilities and individual characteristics will often necessitate modified annual goals for these children. The school district, however, must specify the reasons why the child's disability makes it impossible to meet the objective state criteria.

Third, the school district must show that the methodology that it employed was tailored to meet the annual goals, benchmarks, and short-term objectives set forth in the IEP. Stated differently, the special education and related services must be tailored to reasonably accomplish the goals in the IEP. Once again, the school district can prove this through expert testimony. Experts may opine that the methodology is generally accepted in the educational community for similarly situated children and recognized by other educational experts as a reasonable approach to providing similarly situated children with educational benefits.

Section 504 of the Rehabilitation Act of 1973

The Civil Rights Act of 1964, which Dr. Martin Luther King was the leader in bringing into law, provides the remedies in court, under its Title VI, that we rely on today under Section 504 and the Americans with Disabilities Act.

The purpose of Section 504 is to remove discrimination by providing the student with a disability the modifications and accommodations and related aids and services to give them access to what every other student enjoys.

Section 504 is broader than the IDEA. If your child was denied coverage under the IDEA, he or she might still be covered under Section 504 because it is much broader.

How can Section 504 be broader?

Parents have many more rights under Section 504 than under the IDEA because Section 504 provides for very specific protections for parents as they advocate for their disabled children. Under Section 504 and the ADA a parent has more power when they are engaged in the "protected activity of advocacy" for their child. The protections are against "retaliation," "intimidation," "interference," "threats" or "coercion."

Section 504 prohibits any recipient of federal financial assistance (which includes your school district, your State Education Agency, your department of Vocational Rehabilitation, many of your colleges, and so forth) from denying an individual the benefits of their program or activities solely on the basis of disability.

This means that if your school district fails to modify its program, and your child, because of their disability, is effectively denied access to the full benefits of the school's program and activities that are available to the other students, then your school district is violating the requirements of Section 504.

Deep pockets

Like Title IX, Section 504 simply states that if your state or local educational agency receives federal funds -- then it has to follow Section 504 and stop discriminating. Every state, including Indiana, DOES take federal educational funds and therefore must comply with Section 504.

Since gaining access to what other students have access to is the hallmark of Section 504, it is very strong on removal of architectural and other types of barriers, so the student can be in the regular classroom, or regular educational activity, that they would be in if not disabled.

Section 504 contemplates the following:

(a) Providing a structured learning environment;
(b) Repeating and simplifying instructions about in-class assignments;
(c) Repeating and simplifying instructions about homework assignments;
(d) Supplementing verbal instructions with visual instructions;
(e) Using behavioral management techniques;
(f) Adjusting class schedules;
(g) Modifying test delivery;
(h) Using tape recorders;
(i) Computer aided instruction;
(j) Other audio-visual equipment;
(k) Selecting modified textbooks;
(l) Selecting modified workbooks;
(m) Tailoring homework assignments;
(n) Consultation with Special Education;
(o) Reducing class size;
(p) Use of one-on-one tutorials;
(q) Use of classroom aides;
(r) Use of classroom note takers;
(s) Involvement of a services coordinator to oversee implementation
of special programs and services;
(t) Possible modification of nonacademic time such as lunchroom;
(u) Possible modification of nonacademic time such as recess;
(v) Possible modification of nonacademic time such as physical education.

When a child is deemed eligible for Section 504 protections, the school district and state education agency "shall provide a free appropriate public education to each qualified disabled person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's disability." 34 C.F.R. 104.33(a). Write your school and state education agency for their written guidelines on what a "free and appropriate public education" provides under Section 504.

Under the IDEA, the evaluation is to describe one of the eleven IDEA listed disabilities. However, the Section 504 evaluation inquiry is aimed not at a list of disabilities but rather looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.

Your state education agency and local school district must have written guidelines for evaluation for mental or physical impairment under Section 504, 34 CFR 104.35.

Family Educational Rights And Privacy Act (FERPA)

In the Family Educational Rights and Privacy Act in 1974, Congress recognized that parents could not get access to their child's records, the evaluations the school was using, the notes teachers were making, what was being "said" about the student in those files, and so forth. An incredible mistake could be made about a student with a disability and the parent would have no way of finding out about it, or correcting it.

FERPA establishes the rights of parents, and students over a certain age, to have access to "all personally identifiable information collected, maintained or used" by a school district in regard to that student. The school must provide written notice to parents (and students over a certain age) of all of their rights under FERPA.

Some of the requirements of the FERPA Act are included in the IDEA but the full statute at 20 U.S.C. 1232g, and the regulations at 34 C.F.R. 99, are much more detailed and apply to all students, as well as students with disabilities.

FERPA does not include funding, but like Section 504, any recipient of federal financial assistance (which includes Indiana school districts) must follow FERPA or risk losing the right to receive any other federal financial assistance.

Americans with Disabilities Act (ADA)

Title II of the Americans with Disabilities Act of 1990 prohibits discrimination based on disability in public entities. OCR is the agency designated by the U.S. Department of Justice to enforce the regulation under Title II with respect to public educational entities and public libraries. The Title II regulation is in the federal code of regulations at 28 CFR 35.

Examples of the types of discrimination prohibited include access to educational programs and facilities, denial of a free appropriate public education for elementary and secondary students, and academic adjustments in higher education. Section 504 and Title II also prohibit employment discrimination; complainants may choose whether to pursue such complaints with OCR or with the Equal Employment Opportunity Commission.

Americans with Disabilities Act (ADA)

It is codified at 42 U.S.C. § 12101 with regulations appearing at 28 C.F.R. § 35.

Although this act has gained most of its notoriety in employment law, it can also be a useful tool in education as well.

It is a mechanism to ensure "Nondiscrimination on the Basis of Disability in State and Local Government Services"

SUMMARY: Section 35 implements subtitle A of title II of the Americans with Disabilities Act, Pub. L. 101-336, which prohibits discrimination on the basis of disability by public entities, such as public schools. Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act. This rule, therefore, adopts the general prohibitions of discrimination established under section 504, as well as the requirements for making programs accessible to individuals with disabilities and for providing equally effective communications. It also sets forth standards for what constitutes discrimination on the basis of mental or physical disability, provides a definition of disability and qualified individual with a disability, and establishes a complaint mechanism for resolving allegations of discrimination.

Background.

The landmark Americans with Disabilities Act ("ADA" or "the Act"), enacted on July 26, 1990, provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications.

This regulation implements subtitle A of title II of the ADA, which applies to State and local governments. Most programs and activities of State and local governments are recipients of Federal financial assistance from one or more Federal funding agencies and, therefore, are already covered by section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) ("section 504"), which prohibits discrimination on the basis of handicap in federally assisted programs and activities. Because title II of the ADA essentially extends the nondiscrimination mandate of section 504 to those State and local governments that do not receive Federal financial assistance, this rule hews closely to the provisions of existing section 504 regulations. This approach is also based on section 204 of the ADA, which provides that the regulations issued by the Attorney General to implement title II shall be consistent with the ADA and with the Department of Health, Education, and Welfare's coordination regulation, now codified at 28 CFR Part 41, and, with respect to "program accessibility, existing facilities," and "communications," with the Department of Justice's regulation for its federally conducted programs and activities, codified at 28 CFR Part 39.

The first regulation implementing section 504 was issued in 1977 by the Department of Health, Education, and Welfare (HEW) for the programs and activities to which it provided Federal financial assistance. The following year, pursuant to Executive Order 11914, HEW issued its coordination regulation for federally assisted programs, which served as the model for regulations issued by the other Federal agencies that administer grant programs. HEW's coordination authority, and the coordination regulation issued under that authority, were transferred to the Department of Justice by Executive Order 12250 in 1980.

In 1978, Congress extended application of section 504 to programs and activities conducted by Federal Executive agencies and the United States Postal Service. Pursuant to Executive Order 12250, the Department of Justice developed a prototype regulation to implement the 1978 amendment for federally conducted programs and activities. More than 80 Federal agencies have now issued final regulations based on that prototype, prohibiting discrimination based on handicap in the programs and activities they conduct.

Despite the large number of regulations implementing section 504 for federally assisted and federally conducted programs and activities, there is very little variation in their substantive requirements, or even in their language. Major portions of this regulation, therefore, are taken directly from the existing regulations.

In addition, section 204(b) of the ADA requires that the Department's regulation implementing subtitle A of title II be consistent with the ADA. Thus, the Department's final regulation includes provisions and concepts from titles I and III of the ADA.

If you want to know even MORE:

Subpart B -- General Requirements

{35.130 General prohibitions against discrimination.

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability --

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program;

(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or

substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

(4) A public entity may not, in determining the site or location of a facility, make selections --

(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.

(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.

(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.

(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

(c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part.

(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

(e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

Technology-Related Assistance for Individuals with Disabilities Act of 1998

Codified at 29 U.S.C. Sec. 2109 (this statute, which broadly defines the term "assistive technology," can be relied upon to seek computer "touch screens, specialized recording and playback devices (e.g. "Language Master") and essentially all other devices, items and systems which are used to "...increase, maintain or improve functional capabilities of individuals with disabilities").

No Child Left Behind Act

NCLB took effect on January 8, 2002. The law covers all states, school districts, and schools that accept Title 1 federal grants. Title 1 grants provide funding for remedial education programs for poor and disadvantaged children in public schools, and in some private programs. NCLB applies differently to Title 1 schools than to schools that do not receive Title 1 grants. However, one way or another, this law covers all public schools in all states.

NCLB emphasizes accountability and teaching methods that work.

A large focus of this law is on reading achievement. Only 32% of fourth graders are proficient readers who read at a fourth grade level.[1]

Schools that receive Title 1 funds may apply for Reading First grants to pay for classroom-reading instruction for grades K-3. These Reading First grants are only available for reading programs that are proven successful based on independent research.

Reading First grants will fund classroom-reading instruction for 90-minute blocks, 5 days a week. Schools may use part of this money to train K-3 teachers in these research-based methods. They may also use a portion of this money to train K-12 special education teachers.

Qualifications of Teachers and Paraprofessionals

This law raises the requirements for teachers. Because all states have accepted Title 1 funds, this quality standard applies to all public school teachers in all states.

Highly-Qualified Teachers

Any new teacher, or any teacher working in a Title 1 program, must meet the criteria for being "highly qualified." That means they hold at least a bachelors degree and have passed a state test of subject knowledge.

Elementary school teachers must demonstrate knowledge of teaching math and reading. Teachers in higher grades must demonstrate knowledge of the subject they teach, or have majored in that subject. Other teachers have until 2005-2006 to obtain at least a bachelor's degree, licensure and or certification.[2]

Teachers with license and certification waivers, even if for an emergency basis, will not meet this standard.

New Standards for Paraprofessionals

New paraprofessionals who assist in Title 1 programs must have completed two years of college or pass a test. The test will assess their ability to support teachers in reading, writing and math instruction. Paraprofessionals already employed have until 2006 to meet these requirements.[3]

Parents' Right to Know Teacher Qualifications

If your child attends a Title 1 school, you are entitled to information about your child's teacher. You are entitled to know whether the teacher is certified and qualified to teach the particular subject and grade. You are entitled to information about the teacher's college degree and major.

If your child receives any services from a paraprofessional, the school is required to provide you with information about the paraprofessional's qualifications.[4]

Proficiency Testing of Children

By the 2013-2014 school year, NCLB requires that all children will be at the proficient level on state testing. To help states and districts accomplish this, NCLB gives states more flexibility in combining federal grants and expenditures.

States and districts may use federal money for research-based programs that are proven effective.

NCLB contains various deadlines for compliance.

School & School District Report Cards

Beginning in the fall of 2002, your district must report the scores for statewide testing to parents. This is the district or school's report card. Your district will report scores for each school as a whole.

The scores will also be broken out into four subgroups: children with disabilities, limited English proficiency, racial minorities and children from low-income families. This information will tell you if your school has been successful in teaching all groups of children. You will be able to compare the report card from your child's school to the report cards from other schools in your district and state.

Annual Testing

Beginning in 2005, your school must test all children in grades 3-8 every year in math and reading. By Fall, 2007, science assessments are required.

These test scores will determine if your school is making Adequate Yearly Progress (AYP) towards the goal of proficiency for all children by the 2013-2014 deadline. Proficiency means the child is performing at average grade level.[5] All subgroups of children, as well as the school as a whole, must meet the AYP goal or the school will fail.

New Options for Parents

The law provides parents with different options depending on whether or not your child attends a school that receives Title 1 grants.

If your child attends a school that does not receive Title 1 funds, you will simply know whether your child's school is improving at the required rate. You will know which subgroups your school teaches successfully.

If your child attends a school that receives Title 1 grants, you will have more choices.

Transfers from Failing Schools

If your Title 1 School fails to meet its AYP goal for two consecutive years, all the children in the school may choose to attend a non-failing school in your school district. If all schools in your district fail, you may send your child to a school in another school district.[6]

All eligible children were not able to transfer out of failing schools at the beginning of the 2002-2003 school year. Some districts did not make cooperative agreements with other districts which prevented parents from exercising this option under the NCLB.

The school district may also limit the amount of money it spends on transportation to other schools. If there is not enough money under a designated formula to pay for transportation, the district may give preference to the lowest achieving children from the lowest income families.

If your child transfers to a better school, your child may stay there until he or she completes the highest grade in that school. Your sending school will provide transportation to the school you have chosen until the sending school raises its AYP rate to an acceptable level.[7]

Supplemental Services: Free Tutoring, After-school Programs, Summer School

If your Title 1 School fails to reach its AYP goal for three years, your school will provide supplemental services to the children remaining there. These supplemental services include tutoring, after-school programs, and summer school.

You may choose a tutor, or other service provider, from a state approved list. The state will ensure that all providers on this list have a history of success. Children will receive these services at no cost. Again, under a formula, the district may give preference to the lowest achieving children in the lowest income families who request supplemental services.

There is nothing in NCLB that prevents the school from providing transfers and transportation to all children in the failing school who request it. There is nothing in the law that prevents the district from providing tutoring to all children in the failing school who request it.

Restructuring Failing Schools

If the school fails to make its AYP goal for four years, the school may replace school staff responsible for the failure. The school may hire an outside expert to advise the school on how to make progress towards its AYP goal.

The school may implement a new curriculum. The new curriculum must address the weaknesses in the old one. The school will train teachers in implementing this new curriculum. The school may also reorganize its management structure.

If your Title 1 School fails for five consecutive years, the school district may replace the principal and staff. The district may contract with a private firm to run the school. The school may reopen as a charter school.

If all these options are unsuccessful, the state will take over management of the school.

Clarifications

The Secretary of Education has issued several policy letters to clarify the No Child Left Behind statute. In August 2002, the U.S. Department of Education issued proposed regulations.

The U.S. Department of Education wants to ensure that parents are part of school reform.

For more information and fact sheets, visit the No Child Left Behind website

To learn about the status of your school or learn more about No Child Left Behind Act in your state, visit the No Child Left Behind site or call 1-800-814-6252 for the name of your state NCLB contact person.