2011-12-20 11:59:05 by admin
The rights of individuals with disabilities in the educational context are governed by three federal laws and numerous state laws. The federal laws are known as the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA). The IDEA governs the provision of special education and related services to students up to the age of 21. Section 504 and the ADA are antidiscrimination laws that protect the rights of employees and parents with disabilities as well as students.
Individuals with disabilities have considerable rights in an educational setting. Students, employees, and parents are all protected from discrimination in regard to employment and services by Section 504 and the ADA. The IDEA, however, provides students with disabilities with greater access to special education and related services. This entry looks at those laws and their application in school settings.
In 1975, Congress passed, and President Gerald Ford signed, landmark legislation known as the Education for All Handicapped Children Act (EHCA). At that time, the EHCA was the most comprehensive federal legislation that provided educational rights for students with disabilities. The EHCA was not an independent act but was an amendment to previous legislation that provided funds to the states for educating students with disabilities. An important feature of the EHCA, as opposed to previous legislation, was that it was permanent, whereas earlier special education statutes expired if they were not reauthorized.
The EHCA was enacted partly in response to a number of federal lawsuits that had been filed seeking to secure educational rights for students with disabilities. In passing the EHCA, Congress found that the educational needs of millions of children with disabilities had not been met, because their disabilities had not been properly diagnosed, and appropriate educational services were not available; many children were excluded from the educational system, and resources within the public schools were not adequate.
The EHCA was given its current title, the IDEA, in 1990. As it now stands, the IDEA mandates a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) for all students with disabilities between the ages of 3 and 21. The law requires school personnel to develop Individualized Education Programs (IEPs) in meetings with students’ parents for any children who require special education and related services. The IDEA is very explicit as to how IEPs are to be developed and what they must contain. Further, the IDEA includes a detailed system of due process safeguards to protect the rights of students and guarantees that its provisions are enforced.
The IDEA has been amended every few years since the original enactment of the EHCA in 1975. An early amendment, the Handicapped Children’s Protection Act (1986), added a clause to allow parents who prevail in litigation against their school boards to recover legal expenses. A second amendment passed that same year, the Education of the Handicapped Amendments of 1986, provided grants to states to provide services to children with disabilities from birth to age 2. The 1990 amendments, in addition to changing the statute’s name, also included a provision to abrogate the states’ Eleventh Amendment Immunity to litigation.
One of the most important and controversial revisions, the Individuals with Disabilities Education Act Amendments of 1997, incorporated disciplinary provisions into the statute. The most recent modification, the Individuals with Disabilities Education Improvement Act of 2004, altered the 1997 disciplinary provisions and brought the IDEA in line with other federal legislation.
One of the unique aspects of the IDEA is that it includes a system of due process safeguards designed to make sure that students with disabilities are properly identified, evaluated, and placed according to the law’s mandates. The statute states that the parents or guardian of a child with disabilities must be provided with the opportunity to participate in the development of the IEP for and placement of their child. The IDEA also requires school boards to provide written notice and obtain parental consent prior to evaluating the child or making an initial placement. After a student has been placed in special education, the school board must provide the parents with proper notice before initiating a change in placement. Even so, while an administrative or judicial action is pending, the school board may not change a student’s placement without parental consent, a Hearing Officer’s order, or a court decree (Honig v. Doe, 1988).
A student’s situation must be reviewed at least annually after the initial placement, and the student must be reevaluated at least every three years. A student with disabilities may be entitled to an independent evaluation at public expense if the student’s parents disagree with the school board’s evaluation. However, a school board may challenge the request for an independent evaluation in an administrative hearing, and if it is determined that the school board’s evaluation was appropriate, the parents are not entitled to have the independent evaluation at public expense.
The IDEA requires that an IEP must contain statements of a student’s current educational performance, annual goals and short-term objectives, the specific educational services to be provided, the extent to which the child can participate in general education, the date of initiation and duration of services, and evaluation criteria to determine if the objectives are being met. IEPs must also include statements concerning how students’ disabilities affect their ability to be involved in and progress in the general educational curriculum along with statements regarding any modifications that may be needed to allow the child to participate in the general curriculum.
Although Congress envisioned that parents and school officials would work together to develop IEPs for students with disabilities, it recognized that they would not always agree. For that reason, Congress included dispute resolution procedures within the statute. When parents disagree with any of the school officials’ decisions regarding a proposed IEP or any aspect of a FAPE, they may request an impartial Due Process Hearing. In Schaffer ex rel. Schaffer v. Weast (2005), the U.S. Supreme Court placed the burden of proof in an administrative proceeding on the party challenging the IEP. Inasmuch as this is generally the parents, the burden of proof has effectively been placed on them in Due Process Hearings.
Any party not satisfied with the final outcome of administrative proceedings may appeal to state or federal courts; however, all administrative remedies must be exhausted prior to resort to the courts unless it is futile to seek such relief. The IDEA empowers the courts to review the record of the administrative proceedings, hear additional evidence, and “grant such relief as the court determines is appropriate” based on the preponderance of evidence standard. Even so, the Supreme Court cautioned judges not to substitute their views of proper educational methodology for that of competent school authorities (Board of Education of Hendrick Hudson Central School District v. Rowley, 1982). A party appealing a final administrative decision has 90 days to do so unless state law provides a different statute of limitations.
Administrative Due Process Hearings and judicial actions are not the only means for dispute resolution under the IDEA. In 1997, Congress amended the IDEA to insert language that provides for the resolution of disputes through a Mediation process as an alternative to an adversarial proceeding. Mediation is voluntary, however, and may not be used to deny or delay the parent’s right to an administrative hearing. The 2004 IDEA amendments also added a new provision requiring school authorities to schedule a resolution session with the parents within 15 days of the receipt of a complaint.
School boards must maintain a “continuum of alternative placements” to meet the needs of students with disabilities for special education and related services. That continuum of placements ranges from the general education environment to a private residential facility; it includes homebound services. Nevertheless, the placement chosen for any given student has to be in the LRE for that child, and removal from general education can occur only to the extent necessary to provide special education and related services. All placements must be at public expense and also need to meet state educational standards. Each placement should be reviewed at least annually and revised when necessary.
The IDEA does not precisely define what constitutes an appropriate education. In 1982, in Board of Education of the Hendrick Hudson Central School District v. Rowley, the first IDEA case to reach the U.S. Supreme Court, the justices defined the term appropriate as used in the statute. The dispute in Rowley involved the special education and related services to be provided to a young student who had minimal residual hearing but was an excellent lip-reader. School personnel placed her in a regular kindergarten class on a trial basis when she entered the public schools. To prepare for her arrival, the school’s staff took sign-language courses and installed a teletype machine to communicate with her parents, who were also deaf. During the trial period, the student had a sign-language interpreter, but the interpreter eventually reported that these services were not needed.
When the student’s IEP for her first-grade year was prepared, school personnel proposed a regular class placement along with an FM hearing aid to amplify the spoken words of her teacher and classmates, one hour per day of instruction from a tutor for the deaf, and three hours per week of speech therapy. The parents essentially agreed to the IEP but requested that the assistance of the sign-language interpreter be continued. The parents filed for a Due Process Hearing after the school board declined their request to continue the interpreter services. Even though the school board prevailed in administrative hearings, the federal trial and appeals courts ruled in favor of the parents. The courts basically decided that the proposed IEP was not appropriate, because it didn’t provide the student with an opportunity to achieve her full potential commensurate with the opportunity provided to students who were not disabled. The school board appealed to the Supreme Court.
The question presented to the Supreme Court was this: What level of services must school systems provide in an IEP, and thus a student’s educational placement, to be appropriate under the IDEA? In a split decision, the Court reversed the lower courts and ruled in favor of the school board. The majority opinion stated that the lower courts erred when they held that the standard was that the potential of students with disabilities must be maximized commensurate with the opportunity provided to students who are not disabled.
The Court emphasized that school boards satisfy the IDEA’s requirement of providing a FAPE when they offer personalized instruction with the support services needed to permit the child to benefit educationally from that instruction. The Court added that IEPs must be formulated in accordance with the IDEA’s requirements. Inasmuch as the student in Rowley was performing better than average and was receiving personalized instruction that was reasonably calculated to meet her educational needs, the Court found that the requested sign-language interpreter was not required.
A key component of the IDEA, which was specifically noted by the Supreme Court in Rowley, is its requirement that students with disabilities be educated in the LRE. In particular, the IDEA requires states, and thus local school boards, to establish procedures to assure that students with disabilities are placed with children who do not have disabilities to the maximum extent appropriate. Further, the IDEA allows school personnel to place children with disabilities in special classes or separate facilities, or bring about other removals from the general education environment, only when the nature or severity of their disabilities is such that instruction in general education classes cannot be achieved satisfactorily, even with supplementary aids and services.
Federal appellate courts in several circuits have issued decisions that collectively show that placement in the LRE is a mandatory component of an appropriate education. On the other hand, the IDEA’s LRE provision does not mandate that all students with disabilities are to be educated within the general education environment. Rather, the task for school officials is to determine the maximum extent to which students with disabilities can effectively be educated in a general education setting. The Ninth Circuit combined elements of decisions from several other circuits to provide a general summary of a school board’s obligations in this regard (Sacramento City Unified School District, Board of Education v. Rachel H., 1994). In effect, the Ninth Circuit affirmed that school officials must consider the following four factors when determining the LREs for students: (1) the educational benefits of placement in a regular classroom, (2) the nonacademic benefits of such a placement, (3) the effect a student would have on the teacher and other students in the class, and (4) the costs of Inclusion.
Another important element of the IEPs of many students with disabilities is the provision of related services. Related services are defined as supportive, developmental, and corrective services that assist students with disabilities in benefiting from their special education. The IDEA specifically lists transportation, speech-language pathology, audiology, interpreting services, psychological services, physical therapy, occupational therapy, recreation (including therapeutic recreation), social work services, school nurse services, counseling services (including rehabilitation counseling), orientation and mobility services, and medical services (for diagnostic or evaluative purposes only) in its definition of related services.
However, because this list is not exhaustive, other services could be considered to be related services if they help students with disabilities to benefit from special education. In that respect, services such as artistic and cultural programs or art, music, and dance therapy could be related services under the appropriate circumstances. The only limit placed on what school officials must provide as related services is that medical services are exempted unless they are specifically for diagnostic or evaluative purposes. The 2004 IDEA amendments clarified that the term does not include a medical device that is surgically implanted or the replacement of such a device.
School systems are required to provide related services only to students who are receiving special education services. By definition, children have disabilities under the IDEA only if they require special education services. Thus, there is no requirement to provide related services to students who are not receiving special education. Even so, because many special education services could qualify as accommodations under Section 504, it is not unusual for school boards to provide related services to students who are qualified to receive assistance under Section 504 but do not qualify for special education services under the IDEA.
The Supreme Court has resolved two cases involving the IDEA’s related services mandate. In 1984, in Irving Independent School District v. Tatro, the Court wrote that catheterization was a required related service. The student in this case could not voluntarily empty her bladder because of spina bifida. Therefore, according to the Court, she had to be catheterized every three to four hours. In its decision, the Court emphasized that services that allow a student to remain in class during the school day, such as catheterization, are no less related to the effort to educate than services that allow the student to reach, enter, or exit the school. Insofar as the catheterization procedure could be performed by a school nurse or trained health aide, the Court postulated that Congress did not intend to exclude these services as medical services.
Tatro stands for the proposition that services that may be provided by school nurses, health aides, or even trained lay-persons fall within the IDEA’s mandated related-services provision. Then again, the fragile medical conditions of some students require the presence of full-time nurses. In its second case dealing with the IDEA’s related-services provision, the Court, in Cedar Rapids Community School District v. Garret F. (1999), held that a school board was required to provide full-time nursing services for a student who was quadriplegic. The Court was of the opinion that even though continuous services may be more costly and may require additional school personnel, that does not make them more medical. Noting that cost was not a factor in the definition of related services, the Court insisted that even costly related services must be provided to help guarantee that students with significant medical needs are integrated into the public schools.
Until Congress amended the IDEA in 1997, neither the statute nor its regulations specifically addressed the controversial topic of disciplining students with disabilities. In spite of this omission, courts applied many of the act’s provisions to instances when students with disabilities were subject to disciplinary action. In the early years of the IDEA, courts determined that students with disabilities had additional Due Process Rights when faced with disciplinary action. In these courts’ opinions, sanctions such as expulsions or long-term suspensions deprived students with disabilities of educational opportunities and consequently their IDEA rights. In the 1997 IDEA amendments, Congress added specific disciplinary provisions that were refined in the 2004 amendments. The IDEA now contains comprehensive guidelines governing the disciplinary process.
Many of the current disciplinary provisions are an outgrowth of the body of case law that developed prior to 1997, including a U.S. Supreme Court decision. In Honig v. Doe (1988), the Court ruled that students with disabilities could not be expelled for behavior that was a manifestation of, or related to, their disabilities. The high Court acknowledged that in passing the IDEA, Congress intended to specifically limit the authority of school officials to exclude students with disabilities, even for disciplinary purposes. The Court did, however, recognize that school officials could suspend students with disabilities for up to 10 days and, if necessary, could seek court injunctions to exclude dangerous students from the general education environment.
The IDEA now clearly stipulates that school authorities may remove students with disabilities who violate school rules to appropriate interim alternative settings, or other settings, or suspend them for up to 10 school days. School administrators may implement such measures only to the extent that they use similar sanctions when disciplining students who do not have disabilities. However, special procedures must be followed when students with disabilities are disciplined. Although these procedures are over and above usual disciplinary procedures, they are in place to protect the right of each student with disabilities to receive a FAPE.
The IDEA further requires school officials to conduct functional behavioral assessments (FBAs) and implement Behavioral Intervention Plans (BIPs), if they are not already in place, under certain circumstances. In particular, officials must perform FBAs and implement BIPs whenever students with disabilities are removed from their current placements for disciplinary reasons for more than 10 school days. Moreover, school personnel must complete FBAs and BIPs it they determine that misbehavior is a manifestation of students’ disabilities. If FBAs and BIPs have been implemented, they should be reviewed for each new infraction that will result in a removal from school.
As stated above, the IDEA currently gives school personnel the unequivocal authority to suspend special education students for up to 10 school days as long as a similar sanction would apply to children who do not have disabilities under similar circumstances. When doing so, school officials must conduct an FBA for students if one has not already been completed and take steps to address the misconduct. School authorities also have the power to remove children with disabilities who violate school codes of conduct in their current placements to appropriate interim alternative educational settings or other settings to the same extent those alternatives are applied to children without disabilities. Specifically, the IDEA permits the placement of students with disabilities in interim alternative educational settings for up to 45 school days for weapons and drug violations or for causing serious bodily injury.
When students are placed in interim settings for possession of drugs, weapons, or having caused bodily harm, the requirements placed on school personnel to conduct FBAs and implement BIPs are relaxed. However, school officials are still required to notify the parents of any decisions and provide them with notice of their procedural safeguards on the date on which educators decide to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct. When parents disagree with the placements in interim alternative settings and request hearings, students must remain in the alternative settings pending the decisions of Hearing Officers or until the expiration of the 45-day period or the parties agree otherwise. At the expiration of the 45-day period, students are entitled to return to their former placements, even if hearings over school board proposals to change their placements are pending.
The IDEA also allows school authorities to expel students with disabilities as long as the behaviors that gave rise to the violations of school rules are not manifestations of their disabilities. Again, though, under these circumstances expulsions must be treated in the same manner and be for the same duration as they would be for students who are not disabled. Even so, the IDEA makes it clear that special education services must continue during expulsion periods. When school officials contemplate the expulsion of special education students, the IDEA requires them to first ascertain whether the students’ misbehaviors are manifestations of their disabilities. If officials agree that there is no connection between a disability and misconduct, they may expel a student.
It is highly likely that expulsions will be challenged, so it is imperative for school officials to follow proper procedures when making Manifestation Determinations. The IDEA now specifies the criteria that IEP teams should consider in evaluating whether misconduct is a manifestation of a student’s disability. Specifically, IEP teams must review all relevant information in student files, including IEPs, teacher observations, and other relevant information from parents that can be used to evaluate either whether a child’s conduct was caused by, or had a direct and substantial relationship to, his or her disability; or whether the conduct in question was a direct result of a school board’s failure to implement the IEP.
Section 504 of the Rehabilitation Act of 1973 reads as follows:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Section 504 was the first civil rights law that expressly guaranteed the rights of individuals with disabilities. Section 504’s provisions prohibiting discrimination against individuals with disabilities in programs receiving federal funds are similar to those in Titles VI and VII of the Civil Rights Act of 1964, which forbids employment discrimination in programs that receive federal financial assistance on the basis of race, color, religion, sex, or national origin. Section 504 effectively prohibits discrimination by any recipient of federal funds in the provision of services or employment. Individuals are covered by Section 504 if they have physical or mental impairments that substantially limit one or more major life activities, have a record of such impairments, or are regarded as having impairments. Major life activities are “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” (28 C.F.R. § 41.31).
Individuals are otherwise qualified for purposes of Section 504 if they are capable of meeting all of a program’s requirements in spite of their disabilities (School Board of Nassau County v. Arline, 1987; Southeastern Community College v. Davis, 1979). To be considered otherwise qualified, individuals with disabilities must be able to participate in programs or activities in spite of their impairments as long as they can do so with reasonable accommodations. If individuals are otherwise qualified, recipients of federal funds must make reasonable accommodations to allow them to participate in programs or activities unless doing so would create undue hardships on the programs. The requirement to provide reasonable accommodations does not mandate that a recipient of federal funds must lower its standards. Reasonable accommodations do require adaptations to allow access, but they do not require program officials to eliminate essential prerequisites to participation. Reasonable accommodations may involve physical plant modifications such as constructing a wheelchair ramp to allow an individual to access the school or allowing a student to be accompanied to school by a service dog (Sullivan v. Vallejo City Unified School District, 1990).
Section 504 offers protection against discrimination to students who have disabilities but are not eligible to receive services under the IDEA. Under the IDEA, students must fall into one of the categories of disabilities outlined within the statute, and must require special education services as a result of that disability, to receive services. On the other hand, the protections of Section 504 reach a much wider population. A good example of the broader reach of Section 504 involves students with infectious diseases. Under the IDEA, students with infectious diseases are entitled to special education services only if their academic performance is adversely affected by their afflictions. Conversely, under Section 504, students with infectious diseases such as HIV or AIDS cannot be discriminated against or excluded from schools unless there is a high risk of transmission of their diseases.
For example, a federal trial court in Illinois decided that a student who had been diagnosed with AIDS was entitled to the protection of Section 504, because he was regarded as having a physical impairment that substantially interfered with his life activities (Doe v. Dolton Elementary School District, 1988). The court added that because there was no significant risk that the student would transmit AIDS in the classroom setting, he could not be excluded from school.
Once identified, qualified students are entitled to an appropriate public education, regardless of the nature or severity of their impairments. To assure that an appropriate education is made available, Section 504’s regulations include due process requirements for evaluation and placement similar to those under the IDEA. In making accommodations for students, school personnel must provide aid, benefits, and/or services that are comparable to those available to children who do not have impairments. As such, qualified students must receive comparable materials, instruction of comparable quality, and comparable daily hours of instruction for a comparable school term. In addition, programs for qualified children should not be separate from those available to students who are not impaired unless such segregation is necessary for instruction to be effective for these children. While school officials are not prohibited from offering separate programs for students who have impairments, these children cannot be required to attend such classes unless they cannot be served adequately in other settings. If such programs are offered separately, facilities must, of course, be comparable.
School boards cannot discriminate against an employee with a disability, as long as the employee is otherwise qualified for the position. A school board must, however, provide reasonable accommodations that will allow the employee to perform the job in question. The prohibition against discrimination extends to applicants for positions as well.
To maintain a discrimination claim under Section 504, employees with disabilities must show that they were treated differently than other employees or that an adverse employment decision was made because of their disability. Employees with disabilities cannot maintain a discrimination claim if they do not have the skills to perform the job in question even when provided with accommodations. Courts do not uphold discrimination claims when the school board can show that an adverse employment decision was made for nondiscriminatory reasons. Further, employees cannot maintain discrimination claims if their alleged disabilities are not covered by Section 504.
As stated above, the Supreme Court has said that a person with a disability is otherwise qualified if that person can perform all essential requirements of the position in question in spite of the disability. Thus, someone who cannot perform essential functions of the position, even with reasonable accommodations, is not otherwise qualified. For example, an essential requirement of most positions, especially those in school systems, is regular attendance. Section 504 does not protect excessive absenteeism, even when it is caused by a disability. Classroom teaching would be considered an essential function of a teacher’s job, and an inability to be physically present and to teach in a classroom would indicate that the individual could not meet all requirements of a teaching position in spite of his or her disability.
Failure to meet teacher certification requirements may disqualify an individual even if the failure is allegedly due to a disability. For example, a teacher from Virginia who claimed to be learning disabled but had not passed the communications section of the National Teachers Examination after several attempts was not deemed to be otherwise qualified for teacher certification (Pandazides v. Virginia Board of Education, 1992). In this case, the court determined that the skills measured by the communications part of the examination were necessary for competent performance as a classroom teacher. Section 504 also does not protect misconduct, even when it can be attributed to a disability.
Aschool board must provide reasonable accommodations so that otherwise qualified employees with disabilities can work and compete with their colleagues who do not have disabilities. Accommodations may extend from simple alterations to the physical environment to adjustments to an employee’s schedule, or even minor changes in the employee’s job responsibilities. On the other hand, a school board is not required to furnish an accommodation if doing so would place an undue burden on the board. For the most part, it is the school board’s responsibility to show that requested accommodations would create an undue financial or administrative burden.
Aschool board also is not required to make accommodations that would essentially change the nature of the position. However, a board could be required to reassign employees with disabilities to other vacant positions that involve tasks that the employees are able to carry out. Reassignment is not required, however, when no other positions are available for which the employees are qualified. A board also is not required to create new positions or accommodate employees with disabilities by eliminating essential aspects of their current positions.
School boards must provide reasonable accommodations for parents who have disabilities so that they can participate in activities essential to their children’s educations. For example, a federal trial court in New York required a school board to provide a signlanguage interpreter so that parents who were hearing impaired could take part in school-initiated conferences related to the academic and disciplinary aspects of their child’s educational program (Rothschild v. Grottenthaler, 1989). Conversely, school boards would not be required to provide accommodations for other school functions in which parental participation is not necessary, such as school plays or even graduation ceremonies. Even so, school boards must allow parents to provide their own accommodations.
The Americans with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against individuals with disabilities in the private sector, effectively extending the reach of Section 504 to programs and activities that do not receive federal funds. The ADA’s preamble explains its purpose as acting “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” (42 U.S.C. § 12101).
Even though the ADAis aimed primarily at the private sector, public agencies may still be held to its provisions. Compliance with Section 504 will generally translate to compliance with the ADA, but due to the more extensive nature of the latter act, there are differences. The legislative history of the ADA indicates that it also addresses what the judiciary had perceived as shortcomings or loopholes in Section 504.
Inasmuch as education is a function of the states, special education is governed by state laws in addition to the federal statutes discussed above. State special education laws must be consistent with the federal laws so that they cannot require less than the federal statutes require. In this respect, however, states can provide greater protection for children with disabilities. While most states have laws that are similar in scope and language to the IDEA, several include provisions in their statutory and regulatory scheme that exceed the IDEA’s requirements. For example, some states have higher standards of what constitutes an appropriate education for a student with disabilities, whereas others have stricter procedural requirements. Most have established procedures for program implementation that are either not covered by federal law or have been left to the states to determine for themselves. If a conflict develops between provisions of the federal law and a state law, the federal law is considered to be supreme under Article VI of the U.S. Constitution.
Allan G. Osborne, Jr.
See also Americans with Disabilities Act; Civil Rights Act of 1964; Free Appropriate Public Education; Least Restrictive Environment; Rehabilitation Act of 1973, Section 504; Related Services
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