Chapter 7 Outline/Reflection

Julie Weems

EDCI 638 School Law

2/25/19
Students with Disabilities
7.1 Historical Perspectives: The Education of Children with Disabilities
o Pennsylvania Association for Retarded Children v. Commonwealth of
Pennsylvania and Mills v. Board of Education-The major finding of both cases
were:
 Children were excluded from public schools because they had disabilities
 The effect of this policy was wholly to deprive these children of access to
a publicly funded education
 The government’s purpose in excluding them was to save money
 Excluding children with disabilities from school was not rationally related
to the goal of saving money because uneducated people were likely to
become a greater financial burden on the state than if they had been
educated
 Exclusion of children with disabilities from school violated the Equal
Protection Clause
o Four major federal statutes designed to ensure effective education and equitable
treatment for children with disabilities
 The Rehabilitation Act of 1973 [Section 504]
 The Americans with Disabilities Act of 1990 [ADA]
 The Individuals with Disabilities Education Act [IDEA}
 The No Child Left Behind Act [NCLB]
o The IDEA is a funding program with requirements that extend only to states that
accept federal funds under the Act
 o Section 504 and the ADA extend protection to students and other individuals
who are not covered by IDEA, impose obligations on schools and in situations
that the IDEA does not reach, and prevent forms of disability-based
discrimination beyond the scope of IDEA

7.2 The Rehabilitation Act and the Americans with Disabilities Act p. 256

o Section 504-“No otherwise qualified individual with handicaps…shall solely by

reason of her or his handicap, be excluded from the participation in, or be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving financial assistance…”
o Protects any person who:
 Has a physical or mental impairment which substantially limits one or
more of such person’s major life activities
 Has record of such impairment
 Is regarded as having impairment
o Section 504 regulates a school’s relationship not only with qualifying students,
but also with qualifying teachers and other employees
o Section 504 protects children with a wide range of impairments, those with
history of life-limiting impairments, and those regarded as having such an
impairment
o All students who qualify for services under the IDEA are also protected by
Section 504 and the ADA
o Title II protects individuals with disabilities from discrimination in the provision
of services by public agencies, like schools
o Title II requires that public schools be made accessible to individuals with
disabilities
 Eligibility
o The laws specifically exclude coverage to individuals because they are
homosexual, transvestites, current smokers, or users of illegal drugs
 o The ADA also excludes individuals whose presence in a program poses a direct
threat to the health and safety of others
o The Supreme Court has ruled that the law protects people with contagious
diseases because they have an impairment of a major life activity
o The Court ruled that if a physical or mental impairment could be mitigated
through the use of medical interventions, the impairment in its mitigated state
would not qualify as a disability under the ADA
o The list of major life activities under the ADAAA (The ADA Amendments Act)
includes:
 Reading, concentrating, thinking, and communicating, as well as hearing,
speaking and learning
 Operation of major bodily functions
 Purposeful Discrimination
o Section 504 and the ADA prohibit purposeful discrimination and also actions
having the unintentional effect of discriminating against those covered by the
laws
o Plaintiffs claiming purposeful discrimination under Section 504 must establish:
 They are a person with disability under the laws
 They are otherwise qualified and can participate in the program with or
without reasonable accommodations
 They have been or currently are being excluded from participation solely
by reason of their disability
 The relevant program or activity is receiving federal assistance
o Failure to protect a child with a disability from harassment also constitutes
discrimination under Section 504 and may be a violation of IDEA as well
o The ADA defines discrimination to include:
 Using eligibility criteria that screen out individuals with disabilities from
goods, services, facilities, privileges, advantages and accommodations
  Failing to make reasonable modifications in policies and practices to
assure that individuals are afforded goods…
 Failing to provide auxiliary aids and services to assure that individuals
with disabilities are not excluded from goods…
o Regulations prohibit imposing a surcharge on students with disabilities for
attending after-school programs
 Unintentional Discrimination p. 260
o Courts have usually found that eligibility requirements for school sports teams or
academics that serve a valid purpose and apply equally to students with or
without disabilities do not violate the law
o The Sixth Circuit said that an exclusion based on age is not an exclusion based on
disability
o The Eighth Circuit said age was an essential eligibility requirement designed to
promote safety
 Accommodations
o Section 504 and ADA require modifications to school programs and other
reasonable accommodations as necessary, so students with disabilities ae not
denied the benefits they would otherwise receive because of their disability
o Section 504 require that public elementary and secondary schools provide a
program that is designed to meet individual educational needs of handicapped
persons as adequately as the needs of non-handicapped persons are met
o Sullivan v. Vallejo City United School District-the court ruled that the defendant
had to permit a student with a disability to bring her service dog to school
o Bercovitch v. Baldwin School, Inc.-private school sought to expel a severely
disruptive 6th grade student. The parents argued he was otherwise qualified to
participate in school’s activities, except for his ADHD. The child was not qualified
because he could not meet the school’s behavioral requirements
 Access to Facilities
 o Section 504 and the ADA require that school facilities be accessible to students
and their parents; however schools need not make every part of a facility
accessible as long as their programs are readily accessible
 Educational Program
o IDEA-a detailed IEP must provide the roadmap to all services provided
o Section 504-silent as to whether the services provided even have to be
committed to writing, let alone what specific items must be included
o Section 504 requires that students with disabilities be thoroughly evaluated and
periodically reevaluated, that they be educated to the maximum extent possible
with nondisabled peers, and that parents be involved in the development of
educational programs
o FAPE-affording a commensurate opportunity for education –the right to receive
reasonable accommodations
 Enforcement
o School districts are required to establish and publicize grievance procedures to
deal with alleged violations of Section 504
o Individuals may file a grievance against a school district with the OCR within 180
days of an allegedly discriminatory action
o OCR will investigate, and if a violation is found, the district must correct it at risk
of losing federal funding
o Individuals can also sure for compensatory monetary damages, but not for
punitive damages

7.3 The Individuals with Disabilities Education Act

o IDEA-a grant program providing money to states that choose to participate—all

states do—to help support the education of children with disabilities
o To be eligible, a state must develop a plan for providing all children with
disabilities a free, appropriate public education which emphasizes special
education and related services
 o The plan must include a system for allocating funding to local school districts and
must comply with the program requirements as spelled out in law and
implementing regulations
 Eligibility
o The IDEA mandates services for children ages 3-21
o Autism, deafness, deaf-blindness, hearing impairment, intellectual disabilities,
multiple disabilities, orthopedic impairments, other health impairments, serious
emotional disturbance, specific learning disabilities, speech or language
impairments, traumatic brain injury, and visual impairment
o IDEA permits school districts to serve children 3-9 experiencing delays
o Rosa’s Law-Mental retardation was replaced with intellectual disability
o Discrepancy Model-comparing academic achievement to intellectual potential in
specified basic-skill areas
o Research-based intervention-a child shall not be identified as disabled if the
determinant factor…is lack of appropriate instruction in reading or math, or
limited English proficiency
o The Fifth Circuit ruled that a student with ADHD was not covered because the
student’s educational performance without SPED was adequate with passing
grades and success with standardized tests
 Identification, Evaluation, and Classification
o The IDEA requires state and local school districts to locate, identify, and evaluate
children with disabilities, even those who have never enrolled in a public school
o The evaluation should be completed early enough so that an IEP can be in place
by the beginning of the school year
o Before a child is evaluated, written notice explaining the proposed evaluation
and the reasons for it must be given to the child’s parents
o If the parents refuse, the parents may agree to enter into mediation with the
district or the district may request an impartial hearing to seek authorization to
proceed with the evaluation
 o Parents must be given a copy of the procedural safeguards of the IDEA
o The evaluation must be designed to access the child’s strengths as well as
weaknesses
o At the conclusion of the evaluation, professionals and parents determine if the
child has disabilities
 The Individualized Education Program (IEP)
o Once it has been determined that a child qualifies for services under the IDEA, an
IEP meeting must be developed
o The process to develop the IEP must consist of one or more meeting attended by
the child’s teacher, another public school representative qualified to supervise
the provision of special education, the child’s parents, and the child
o In developing the IEP, the team must consider any special circumstances that
may be affecting the child’s educational performance
o The IEP must be reviewed by the same process at least once a year and early
enough so the new IEP can be in force at the beginning of the next school year
o If parents are dissatisfied with the outcome of the IEP process, they may seek
review form an impartial hearing officer
o IEP-written statement that includes the child’s present level of educational
performance, annual goals, the special education and related services to be
provided, any assistive technology to be provided, the extent to which the
student will participate in the school’s general program, the dates for initiation
and duration of services, criteria, procedures and schedules for evaluating, and a
plan for informing parents
o Transition Services-programs designed to ease movement from school to post-
school activities
 An “Appropriate” Education
o An IEP must specify a program of special education consistent with the child’s
evaluation
 Board of Education of Hendrick Hudson Central School District v. Rowley 458 U.S. 176
(1982)-a U.S. Supreme Court case concerning the interpretation of the Education for All
Handicapped Children of 1975. Any Rowley was a deaf student whose school refused to
provide a sign language interpreter…the Rowley family lost
o Even if a student with disabilities is receiving educational services that are
potentially beneficial, the student’s program may still be judged not to meet the
appropriate-education standard if the school fails to protect the student from
harmful mistreatment by other students
o It is permissible for a school to choose a less costly program over a more costly
program as long as the cheaper program meets Rowley standards
 Related Services p. 274
o IDEA defines related services to include:
 Transportation, and such developmental, corrective, and other
supportive services as may be required to assist child with a disability to
benefit from special education, and includes the early identification and
assessment of disabling conditions in children
o Assistive Technology Device-a piece of equipment of product used to increase,
maintain, or improve functional capabilities of children with disabilities
o Assistive Technology Service-a service that assists a child in the selection,
acquisition or use of assistive technology
o Three guidelines for determining whether a school is obligated to provide
services that relate to the health and educational needs of handicapped
students:
 Services must be provided to children who require special education
 Services must be provided only if they are necessary to permit the child
to benefit from special education
 Services must be provided only if they may be performed by a nurse or
other qualified person but are not required if they must be performed by
a doctor
 Transition Services and Positive Behavioral Supports
o In 1990, the IDEA was amended to reflect the need for IEPs to include transition
services
 Least Restrictive Environment
o Inclusion-least restrictive environment
 The child must be educated with children who do not have disabilities
and special classes and schools and institutionalization should be used
only when the nature or severity is such that education in regular classes
cannot be achieved
 P. EX REL. MR. and Mrs. P. v. Newington Board of Education 546 F. 3d 111 (2008)-
Plaintiff, who brought a two-year challenge against the Newington school system,
diagnosed with Down Syndrome, a hearing impairment, and other health problems—
After receiving an IEP, P. requested and administrative hearing to challenge the 2004-
2005 and 2005-2006 IEP’s contending that P. was not integrated into the regular
classroom—The 2004-2005 IEP did not comply, but the 2005-2006 was in compliance
o The Ninth Circuit has adopted a balancing test encompassing four factors:
 The educational benefits available in general education classroom with
supplementary aids and services as compared to the benefits available in
a more restrictive environment
 The nonacademic benefits of the general classroom compared to the
more restrictive environment
 The effect of the presence of the student with a disability on the teacher
and other students in the general classroom
 The cost of placement in the general education classroom
 Residential Placements p. 282
o IDEA regulations specify that if placement in a residential program is necessary
to provide special education and related services to a child with a disability, the
program, including nonmedical care and room and board, must be at no cost to
the parents of the child
 o The Seventh Circuit concluded that a school district did not have to reimburse
parents for the costs of placing a disruptive child with a growing criminal record
in a boarding school that specialized in dealing with such children
o After a child is placed in a residential facility, the child’s home school district
continues to be responsible for monitoring compliance with the IEP and for
reevaluation
 Students with Disabilities and Private Schools p. 283
o If a private school student qualifies for services under IDEA, the public school
district may make the appropriate special education available at public school, or
pay for the services at a private school
o If a school district makes FAPE available to a child in a public school, but the
child’s parents place the child in a private school, the district does not have to
pay the child’s tuition or the additional costs associated with the child’s disability
o The Supreme Court concluded that IDEA authorizes reimbursement for the cost
of private special education services when a school fails to provide FAPE and the
private school placement is appropriate, regardless of whether the child
previously received special education or related services through the public
school
 Change of Placement
o The Second Circuit said that a change in placement occurs when there is a
change in the general educational program in which the child is enrolled, rather
than mere variations in the program itself
o The Sixth Circuit said a change of placement occurs when a modified educational
program is not comparable to the plan set forth in the original IEP
o The Third Circuit said the question has to be whether the decision is likely to
affect in some significant way the child’s learning experience
o Stay-put requirement-designed to maintain the status quo during the impartial
hearing and any subsequent appeals
  Unless both the school and the parents agree, the child must be left in
the present educational placement even if one party believes that it is
not an appropriate placement under the law
 Discipline of Students with Disabilities
o The central principle is that children with disabilities are not to be excluded from
receiving special education for disciplinary reasons
o All children with disabilities must receive a FAPE including children with
disabilities who have been suspended or expelled from school
o If the district is not deemed to have knowledge, yet the child is in fact disabled,
the child may be subjected to disciplinary measures applied to children without
disabilities who engaged in comparable behaviors
o For children who already have an IEP or who the district knows to have
disabilities, disciplinary measures may be employed only to the extent that the
same measures are employed with children without disabilities
 Verbal reprimands
 Denial of privileges
 Detentions of reasonable duration
o Interim alternative educational setting-to relocate a misbehaving child with a
disability—more restrictive placement or in-school suspension for ten days or
less, or to suspend the student for ten days without employing change of
placement procedures
o Manifestation inquiry-may be undertaken while the child is being disciplined in a
manner that does not constitute a change in placement
o Functional behavioral assessment-a variation on procedures originally
developed to ascertain the purpose or reason for behaviors displayed by
individuals with severe cognitive or communication disabilities
o Behavioral intervention plan-a plan that is based on the results of a functional
behavioral assessment and includes a description of the problem behavior
 o If a student’s behavior is found not to be a manifestation of the student’s
disability, the student may be subjected to the same disciplinary procedures as
nondisabled students
o Students with disabilities must always continue to receive a FAPE
 Dispute Resolution
o The Supreme Court has ruled that the IDEA affords parents independent rights—
parents of students with disabilities can invoke the law’s procedural protections
and can proceed pro se, (without an attorney) even if the case reaches federal
court
o Any dispute between parents and school over any aspect of IDEA is subject to
mediation if both sides agree to it
o Either side can request a hearing before an impartial hearing officer
o Prior to the hearing, the district must convene a resolution session with the
parents and others designated in the law in an attempt to reach agreement
o If the resolution does not reach an agreement, the impartial hearing commences
o Parents may demand a hearing to
 Insist their child be evaluated
 To protest the process or outcome of an evaluation or IEP meeting
 To challenge the adequacy of special education
 To object to changes of placement or disciplinary actions
 To claim that their procedural rights as parents have been violated
o A school district may initiate a hearing if
 The district believes the parents are preventing a child with a disability
from receiving an appropriate education
o If parents prevail at an administrative hearing, the school district must take
whatever action the hearing officer or state agency prescribes. They may be
granted declaratory and injunctive relief
o Courts may order remedial action
 o Parents may be reimbursed for expenses incurred in providing the necessary
special education or related service

7.4 No Child Left Behind and Students with Disabilities p. 289

o IDEA requires schools to provide individualized educational programs to students

with disabilities based on learning goals
o Under NCLB, students with disabilities are a designated subgroup whose
performance must be assessed to determine if a school is making adequate
yearly progress
o NCLB requires that at least 95%of each designated subgroup participate in yearly
statewide assessments and that schools be designated as needing improvement
in any subgroup fails to make adequate yearly progress
o States are permitted to develop modified assessment standards for students
with severe cognitive disabilities
o IDEA requires that all special education teachers meet the NCLB criteria for
highly qualified teachers
o IDEA requires that all students with disabilities be included in all statewide
assessments including those mandated by NCLB
o Board of Education of Ottawa Township High School District 140 v. Spellings-the
Seventh Circuit ruled that the plaintiffs (parents and school districts) had not
succeeded in showing that it was impossible to comply with IDEA and NCLB—the
court said that if the two laws are shown to conflict, NCLB should take
precedence because it is the newer law

Personal Summary/Reflection

My nephew has Angelman’s Syndrome, and he is completely dependent on trusted adults for
everything. When he began Kindergarten, I was unsure what exactly schooling would mean for
him. As I stated in the forums, I had no background with special education my first few years of
teaching and had to learn as I went along. I was surprised and pleased to learn he was in the
regular classroom with his classmates for the entire day, minus physical therapy, occupational
therapy and speech. My other concern was for his classmates. Would they be able to
concentrate with him in the classroom? Would his constant movement, laughing and crying
distract them and cause their learning to limited? Although I don’t have the answers to these
questions, his classmates treat him kindly and seem to have accepted him and his behaviors.

Teaching in a private school, we could not accommodate disabilities like Carter’s. I know our
administrator would discuss with parents why we could not serve him. Many years ago, we had
a student that had a full-time para all day. She would take her to the public school to work with
the SPED teachers there twice a day. They lived about an hour outside of town and her school
district, I believe Gordon/Rushville, paid for her para, even though she was attending a private
school in Alliance. It is difficult for me to understand why parents choose private schools when
we do not have the resources public schools have. We do not have counselors on staff, nor do
we have our own SPED, speech, physical or occupational therapists on staff.

I was pleased to learn, more in-depth, about the differences between IEPs and 504’s. I have one
student with a 504 and two with IEPs. This chapter was so eye opening for me.