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CHAPTER 1

Understanding the Basic Rights of Students With Disabilities

Questions Principals Ask

• What are FAPE, LRE, and related services?

• What rights do students and their parents have?

• What is required under Title I of the Elementary and Secondary Education Act (ESEA)?

• How do Section 504 of the Rehabilitation Act and the Americans With Disabilities Act affect schools?

The Individuals With Disabilities Education Act is the primary U.S. federal policy that defines which students are eligible for special education supports and services and protects students with disabilities against discrimination (see appendix B, beginning on page 71, for a summary of key legal provisions in IDEA 2004). This federal law guarantees all students, regardless of their disability, a free appropriate public education (commonly referred to as FAPE). To be eligible under IDEA, a student must first be determined to have a disability that is consistent with one or more of the categories specified in the law, and the disability must have an adverse effect on educational performance that necessitates specially designed instruction to meet the unique needs resulting from the disability. Only students who meet the eligibility requirements are entitled to FAPE.

Visit http://nichcy.org/laws/idea for a wealth of information about IDEA, including summaries of requirements, statutes and regulations, and training materials.

Free Appropriate Public Education

A free appropriate public education includes specially designed instruction in addition to appropriate related services (for example, speech and language services, occupational therapy, technology, and so on) without cost to parents or students. The individualized education program defines what is considered appropriate for each student with a disability. To create an IEP, a team of individuals referred to as the IEP team (which includes the parents, selected school personnel, and, when appropriate, the student) meets to review the student’s evaluation data and determine the appropriate services and instructional strategies that will support the student in the classroom (see chapter 3 for more information about developing an IEP and selecting members for the IEP team).

The IEP is a critically important legal document as well as the foundation for educating a student with a disability. The process for developing the IEP and who should be involved in developing the IEP are carefully prescribed in law as part of the guarantee of FAPE. The IEP represents a contract between the school system and the student’s parents or guardians. We will discuss this important document in more detail in chapter 3.

What is considered FAPE for any given child is to be determined by the IEP team. However, defining what is considered appropriate has been subjected to a number of legal decisions. The U.S. Supreme Court case Board of Education v. Rowley (1982) ruled that schools are responsible for providing an individualized education to students eligible under the law. However, the court also stated that the law did not intend appropriate to mean maximizing the fullest potential of each child with a disability. The court further defined FAPE as an education that is delivered in compliance with the student’s individualized education program and is “reasonably calculated to enable the child to receive educational benefits” (Board of Education v. Rowley, 1982).

Additional guidance on implementing IDEA’s statutes and regulations is provided at http://idea.ed.gov by the Office of Special Education and Rehabilitative Services (OSERS) and the Office of Special Education Programs (OSEP) within the U.S. Department of Education.

Least Restrictive Environment

IDEA also requires that students with disabilities be educated in the least restrictive environment and with their nondisabled peers “to the maximum extent appropriate” (Assistance to States for the Education of Children With Disabilities, 2009). The 1997 and 2004 amendments to IDEA emphasize that IEP teams must first consider providing special education in the general education classroom and may only consider other settings if the student cannot receive an appropriate education even with special supports and services. For most students, the general education classroom is the appropriate setting. However, some children may require other settings, and the IDEA regulations require that school districts must be able to provide instruction in the following settings: general classrooms, special classrooms, special schools, home, and hospitals and institutions.

Where a child is educated is based on multiple factors such as academic achievement, progress in the general education curriculum, and teacher and parent input, and it is the responsibility of the IEP team to evaluate all the data and document why a student might receive special education outside the general classroom. According to OSEP’s 29th Annual Report to Congress, during the 2004–2005 school year, 96 percent of students ages six through twenty-one served under Part B of IDEA were educated in general education classes for at least some part of the school day. More than half of all students ages six through twenty-one served under Part B of IDEA were educated for 80 percent or more of the school day in general education classes (U.S. Department of Education Office of Special Education and Rehabilitative Services, 2007).

Under IDEA, more restrictive placements can be considered appropriate when the safety of the student with a disability or of the other students in the school environment is threatened or when the student with a disability is so disruptive that the education of the other students is significantly impaired. In these instances, documentation of the student’s behaviors to support the more restrictive placement is essential. Exactly what documentation might be required will depend on your local district’s policies, but most likely the IEP will require that the team indicate why it has decided to remove a student from the general education classroom. For instance, the statement might include evidence about specific behaviors such as vocal outbursts or aggression that may require a smaller, more controlled environment for learning to occur. These decisions are to be reconsidered at least once a year, and there should be evidence in the IEP that the interventions and supports that the student might require have been attempted in a general classroom.

Related Services

Under IDEA 2004, related services are defined as services that enable an individual student with a disability to benefit from special education. They are different from special education, which is specially designed instruction. IDEA includes the following items in its definition of related services an individual student may need to benefit from special education:

• Transportation

• Speech and language services

• Physical therapy

• Occupational therapy

• Interpreting services

• Audiology services

• Psychological services

• School health services

• Technology

• Recreation

This list is not exhaustive. However, IDEA does exempt surgically implanted devices and medical services unless those services can be provided by a trained layperson, including a teacher, school nurse, paraprofessional, or similarly trained individual. Related services are determined by the IEP team and specified on the IEP document.

Procedural Protections for Parents and Students

To protect the rights of students with disabilities and ensure their parents or guardians are meaningfully included in all decisions related to the student’s special education program, IDEA provides procedural due process requirements. These are formal procedures and processes that the school must follow and are usually referred to as procedural safeguards or sometimes as parents’ rights. They are intended to protect against school decision making that may prevent a student with a disability from obtaining a free appropriate public education. IDEA sets the basic requirements, but each state—and often districts—must develop their own policies and procedures that may be more restrictive than the federal requirements. It is essential for principals to have a firm understanding of their state and district procedural safeguards to ensure that the school is upholding the rights of the students in their building and those students’ parents. They must be sure to follow the specific procedures and timelines set by their districts pertaining to such things as parent notices, required signatures, and so on. These procedures, which may be regarded as burdensome paperwork, are actually legal entitlements guaranteed under the law. The district special education administrator should ensure that each principal has a document that states these policies and procedures in his or her school and should ensure that it is available to parents as needed. This individual is the key contact in matters pertaining to special education and should be consulted in case of any doubt about a procedure.

Under the procedural safeguards in IDEA, parents are entitled to the following due process rights:

• Written prior notice of any actions related to their child and special education

• Written material provided in the parents’ native language unless it is clearly not feasible to do so

• Opportunity to examine all records relating to their child, including identification evaluation, placement, IEP development, disciplinary notices, progress reports, and reports from service providers

• Right to obtain an independent educational evaluation of their child

• Right to participate in and agree to all decisions regarding their child’s identification, evaluation, educational placement, and the provision of free appropriate public education

• Opportunity to present complaints regarding any matter relating to the identification, evaluation, educational placement, or provision of free appropriate public education for their child. School districts must have procedures in place for parents to follow when filing a written due process complaint and include information on how to complete a hearing request form. According to IDEA regulations, the hearing request form must include the student’s name and address, the name of the school the student attends, a description of the complaint, and recommendations for a resolution to the problem (Seltzer, 1998). A parent’s due process hearing request must address alleged violations that occurred not more than two years before the date that the parent or school district knew or should have known about the issue leading to the request.

• Written prior notice when parents and the school disagree on a course of action. This notice must include—

a detailed description and explanation of the course of action recommended or refused

a description of the evaluation procedures used to inform the decision about the recommended or refused course of action

a description of alternative options considered by the IEP team and explanation of why those options were deemed inappropriate for the student with a disability

a procedural safeguards statement identifying the rights of the parent(s) of the student with a disability as defined in IDEA

organizations for parents to contact to learn more about their rights and the rights of their student

any additional information that was considered by the school regarding the course of action in dispute

• Opportunity for mediation. The outcomes of mediation are considered enforceable as a settlement agreement.

• Opportunity to request a resolution meeting prior to presenting a complaint through a due process petition. Resolution meetings are considered less adversarial than due process hearings.

Additionally, students have the right to a surrogate parent when parents are unknown or legally cannot participate. A surrogate parent cannot be employed by any agency educating or caring for the child, should possess the skills and knowledge needed to represent the student, and is selected in accordance with state law.

Due Process Under IDEA

Procedural safeguards are grounded in the due process clause of the U.S. Constitution. Only a very small number of disputes that arise between parents and schools end up with parents filing a due process complaint. However, in the event that a parent should ever file such a petition, it is unlikely that a principal would manage this situation. The principal should notify the district special education administrator to make certain that all timelines and procedures are followed. It is not uncommon for parents to prevail in a hearing because the school did not follow specified procedures and timelines. For this reason, it is very important that principals know the procedures and timelines required by their districts and that they ensure compliance with these requirements.

A due process complaint (also known as a due process request or due process petition) must allege that a violation occurred not more than two years before the date the parent or public agency knew or should have known about the alleged violation.

Information required in a due process complaint includes the following:

• Name of the child

• Address of the residence of the child

• Name of the school the child is attending

• A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem

• A proposed resolution of the problem to the extent known and available to the party at the time (Assistance to States for the Education of Children With Disabilities, 2010e)

If the parents and school district are unable to resolve the issue through an alternative dispute resolution process within thirty days of filing the request for a hearing, a forty-five-day due process hearing timeline begins. This means that a due process hearing must be held and a final decision issued within forty-five calendar days of the end of a resolution period. Either the parents or the school district has the right to appeal a final due process decision to state superior or federal district court within ninety days of the decision.

Alternative Dispute Resolutions

IDEA includes provisions to help parties reach an agreement through mediation or a resolution meeting in hopes of avoiding a due process hearing. The 2004 amendments to IDEA added a resolution process that schools must adhere to after receipt of a due process complaint. Specifically, IDEA now states that within fifteen days of receiving a due process complaint, the school district is required to schedule a resolution meeting with the parents and selected IEP team members unless the parents and school district agree in writing to waive the meeting or agree to participate in mediation instead of a resolution meeting. School districts are not permitted to bring a lawyer to the resolution meeting unless the parents of the student with a disability bring a lawyer. It should be noted that while a resolution meeting is now required when a parent submits a due process complaint, if the complaint is initiated and filed by the school district, IDEA does not require a resolution meeting prior to a due process hearing.

The purpose of the resolution meeting is for the school and parents to have an opportunity to meet, discuss the complaint, and resolve the problem without having to resort to a due process hearing. IDEA explicitly states that participants in the resolution meeting must include IEP team members who have information about the due process complaint and who were selected, in agreement, by the parents and the school or school district. Once the meeting is scheduled, if the parents do not attend, then the school has the right to ask the hearing officer to dismiss the due process complaint.

IDEA also requires schools and school districts to develop and make available processes to provide mediation to parents as an alternative to a due process hearing. Mediation is voluntary and provided at no cost to the parents. Parents may opt for mediation instead of a resolution meeting if they prefer that the process be facilitated by an objective third-party individual. A mediator is assigned to each case by the state to guide effective communication between the parents and the school and assist them in the process of resolving the dispute by facilitating a mediation meeting. The state is required by IDEA to maintain a current list of qualified persons that can serve as mediators. Mediators must have expertise in IDEA’s statutes and regulations as well as individualized instruction, special education, and related services.

The collaborative approach of mediation is intended to encourage parents and the school system to work together to seek solutions to the issues in the dispute. The purpose of mediation is to discuss the issues and explore the options in an attempt to resolve the dispute. The use of mediation reduces time and other resources spent in litigation. In both the resolution meeting and the mediation meeting, if a solution to the problem is agreed upon by the parents and the school, all participants are required to sign a legally binding document which states the problem and the agreed-upon solution.

However, participation in the mediation process is optional; parents have the right to refuse mediation and can opt to move directly to a due process hearing. Furthermore, principals cannot use mediation to stall or delay a parent’s due process request. IDEA sets specific timelines governing the scheduling and decision making surrounding mediation to ensure that parents’ concerns are addressed in a timely fashion. If the parent(s) agree to the process of mediation, a mediation conference must be scheduled within fifteen calendar days of receiving the due process complaint, and a resolution that the parents and school agree to must be signed within thirty days of receiving the due process complaint.

Expedited Due Process

Parents and school districts have the right to request an expedited due process hearing when the dispute results from a disciplinary action and concerns a student’s placement or determination of manifestation. Either the parent or the school district can file the expedited due process complaint and request. Regardless of who brings the complaint, the school system is responsible for scheduling the due process hearing and ensuring that all expedited timelines are met. Once the expedited due process complaint is received, the school is responsible for convening a resolution meeting within seven days unless the parents and the school agree to waive the resolution meeting. If the dispute cannot be resolved in the resolution meeting, the expedited hearing must occur within twenty school days of the request, and an administrative law judge must issue a decision within ten school days after the hearing. Although the timeline is considerably shortened, IDEA mandates that the expedited hearing maintain the same requirements as stipulated for general due process hearings such as a right to counsel and presentation of evidence with the opportunity to cross examine. IDEA does give states the authority to develop and implement alternate timelines and rules for expedited due process complaints and hearings. Therefore, it is important to ensure that you are familiar with your state procedures as well as the requirements specified in IDEA. Generally, state guidelines can be located on your state’s education website.

Students With Disabilities and No Child Left Behind

In addition to IDEA, there are specific requirements pertaining to students with disabilities in the No Child Left Behind Act. Together, NCLB and IDEA define how students with disabilities are to be assessed and how schools will be held accountable for their performance and educational improvement. NCLB also specifies that all students, including those with disabilities, are to access and be held accountable for achieving the same grade-level content standards as all other students in the building. The expectation that students with disabilities should be fully included in grade-level state standards is designed to eliminate some historical problems in special education, including lower expectations for student learning, isolated IEP goals, and special education instruction focused primarily on low-level skills (McLaughlin, 2009).

Both IDEA and NCLB policies require that all students with disabilities are included in statewide assessments and that their progress in achievement not only be reported as a separate subgroup but also be included in the schoolwide calculations. While IDEA and NCLB both demand that all students with disabilities be included in statewide assessments, the laws still recognize the importance of individualization, a cornerstone in special education, by providing several ways for students with disabilities to participate in the statewide assessments. A student’s IEP is expected to reflect grade-level content standards, but certain students may be assessed against different achievement standards. There are five ways that a student with a disability may be assessed: (1) regular assessment without an accommodation, (2) regular assessment with accommodations, (3) alternate assessment based on grade-level achievement standards, (4) alternate assessment based on modified achievement standards, and (5) alternate assessment based on alternate achievement standards (see chapter 4 for more detailed information about accommodations and modifications of assessments).

Alternate achievement standards only apply to students with significant cognitive disabilities and are defined as “an expectation of performance that differs in complexity from a grade-level achievement standard” (U.S. Department of Education, 2005, p. 20). In addition to alternate achievement standards, states have the option of developing modified achievement standards for students whose disabilities are so severe that they are unable to achieve grade-level proficiency or progress in the same time frame as other students (McLaughlin, 2010). Only a very few states have developed modified achievement standards, and it is unlikely that these standards will be continued when NCLB is reauthorized. As of this writing, draft legislation for this reauthorization has been released.

Visit http://www2.ed.gov/policy/elsec/guid/states/index.html for more information on NCLB and students with disabilities.

Highly Qualified Special Education Teacher

Another provision in both NCLB and IDEA refers to highly qualified special education teachers. Under IDEA 2004, a highly qualified special education teacher is defined as someone holding full state certification and meeting the same requirements as general educators if he or she teaches core academic subject matter (such as English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, art, or history and geography) at middle and high school levels. Teachers of students held to alternate achievement standards in middle and high school should be certified or qualified in “subject matter knowledge appropriate to the level of instruction being provided” (“Q and A,” 2007).

These requirements have implications for where and from whom a student with a disability receives his or her instruction. Middle or secondary students with disabilities must receive instruction in the previously mentioned content areas from teachers—special or general education—who are considered qualified by their state to teach that content. The “generic” special education teacher cannot be the primary instructor in these areas. It can be very difficult to find a teacher who is qualified in certain content areas such as algebra, geometry, or the physical sciences and in teaching students with disabilities. This requirement has led to increased use of co-teaching and collaborative models (which we discuss in chapter 4) that enable teachers to share expertise and collectively determine how best to deliver the content to every student.

Defining a Highly Qualified Special Education Teacher

In general, to be considered a highly qualified special education teacher, IDEA requires the following (Assistance to States for the Education of Children With Disabilities, 2010b):

• Full state certification or licensure as a special education teacher

• No waiving of certification or licensure requirements on an emergency, temporary, or provisional basis

• A minimum of a bachelor’s degree

However, there are different requirements for special education teachers who teach core academic subjects, alternative achievement standards, and multiple subjects. Please visit http://nichcy.org/schools-administrators/hqt for more information about the federal requirements for highly qualified special education teachers. For a list of additional resources that contain information on staff development and qualified personnel, see the section on qualified personnel in appendix A (page 68).

Visit go.solution-tree.com/specialneeds for links to the websites mentioned in this book.

Section 504 of the Rehabilitation Act and the Americans With Disabilities Act

In addition to IDEA, two civil rights laws that prohibit discrimination on the basis of an individual’s disability include (1) Section 504 of the Rehabilitation Act and (2) the Americans With Disabilities Act. Any student with a documented disability is covered under Section 504, but not all of these students are eligible under IDEA.

Section 504

Section 504 protects both children and adults with disabilities from discrimination in institutions receiving federal funds. Under Section 504, administrators, teachers, school psychologists, and other school personnel are required to identify students with disabilities and provide these students with educational opportunities equal to the educational opportunities offered to their nondisabled peers. To qualify for protection under Section 504, an individual must be considered a handicapped person. Although the original definition of individuals protected under Section 504 was relatively narrow, the law was amended in 1974 to define a handicapped person as “any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment, or is regarded as having such an impairment” (U.S. Department of Education, 1996).

The definition in Section 504 is much broader than the definitions of the disability categories provided under IDEA. Under this definition, students protected under Section 504 range from those with Tourette syndrome, asthma, AIDS, and diabetes to students with alcohol and drug problems. Thus, students who are eligible for IDEA services are also protected under Section 504 but not all students who are eligible for Section 504 services will be eligible to receive services under IDEA. Essentially, the definition of a disability in Section 504 encompasses all students who have an impairment that affects a major life activity.

The protection from discrimination provided through Section 504 also includes participation in extracurricular activities and architectural accessibility. Section 504 not only protects the rights of students at the preschool, elementary, secondary, and postsecondary levels in the classroom but also applies during school district programs such as afterschool care and summer programs (Yell, 2006). Persons who qualify under the protections of Section 504 may not be discriminated against in programs receiving federal assistance and are entitled to reasonable accommodations to facilitate their participation. A few examples of reasonable accommodations that schools may be responsible for providing include, but are not limited to, the following:

• Changes to the classroom environment such as seating arrangements, reduction of visual or auditory distraction, or use of study carrels or partitions

• Changes to the testing environment such as extending the amount of time to take the exam, providing the test orally, allowing for open-book testing, or allowing the student to dictate answers on a tape recorder

• Use of a student’s behavior intervention plan

• Provision of textbooks and materials with enlarged print, highlighted textbooks, or books on tape

• Changes to homework and in-class assignments such as providing extra time to complete assigned work, allowing for written assignments to be delivered orally, or segmenting long assignments into discrete shorter tasks

Section 504 Key Provisions

In contrast to IDEA, there are no federal funds available under Section 504 to assist school districts and other institutions in meeting the requirements of the law.

Under Section 504, students with disabilities are entitled to:

• Protection from discrimination in elementary, secondary, and postsecondary schools

• School programs, structures, and activities that are physically accessible

• Facilities and services that are comparable to general education facilities and services in instances when the school operates a separate facility for students with disabilities

The Office for Civil Rights (OCR) in the U.S. Department of Education investigates complaints with a goal of reducing and eventually eliminating discrimination against students with disabilities. If a school district is found to be violating the requirements of Section 504, OCR will encourage the school district to enter into a corrective action agreement in order to address the problem. However, in the rare case that a school district refuses to comply with the requirements of Section 504, OCR has the right and responsibility to begin enforcement action whereby the case may be referred to the Department of Justice, or the OCR may terminate Department of Education financial assistance to the school.

The provisions of Section 504 are sometimes used as a basis for providing services for students who have learning difficulties but who do not have an IDEA-eligible disability. Some services provided under Section 504 include adaptation or modification of testing conditions such as providing exams in alternative locations, extending the allotted testing time, providing oral exams, and other reasonable accommodations (see chapter 4 for explanations of testing adaptations and modifications). However, Section 504 does not require schools to change the nature of their programs to accommodate individual students. And, as under IDEA, students who qualify for Section 504 protections may not be suspended, expelled, or otherwise punished for manifestations of their disability (see chapter 5 for an explanation of IDEA’s discipline requirements).

Evaluation and Placement

In order to be protected under Section 504 and receive services, students must be evaluated and placed. Placement decisions are determined by a team of individuals (convened by the principal) who know the student, know how to interpret evaluation data, and know the variety of placement options available in the school or school district. Although the specific members of the team can vary by student, the team generally includes a general education classroom teacher and other school personnel with expertise that could be beneficial to helping the student such as a building nurse, the school psychologist, a social worker, and so on. As in IDEA, the team is required to use information from a variety of sources and base all placement decisions on the individual needs of the student. Once a student is identified as needing services under Section 504, the school should develop an individual plan to ensure appropriate accommodations are available to the student. Although a written document is not mandated by law, it is generally suggested as best practice to develop one and an individualized education program similar to that outlined in IDEA may be used as the Section 504 plan. The purpose of the 504 plan is to explicitly define accommodations or modifications needed by the student in order to successfully participate in the general education setting. Accommodations might include monitoring of blood sugar levels, provision of wheelchair ramps, a peanut-free lunch environment, or a tape recorder or keyboard for taking notes in the classroom setting. The 504 plan is a legally binding document that encourages consistency of accommodations and services provided to the student as well as accountability.

Procedural Safeguards

As Mitchell Yell (2006) explains, parents are entitled to a number of specific rights under Section 504, including the following:

• Right to be notified of procedural rights under Section 504

• Right to be notified when their child is referred, evaluated, and placed

• Right to notification when eligibility is determined

• Right to an evaluation that uses information from multiple sources and is conducted by knowledgeable persons

• Right of the student to have access to equivalent academic and non-academic services

• Right of the student to receive an appropriate education in the least restrictive setting, which includes accommodations, modifications, and related services

• Right to file grievance with the school district

• Right to an evaluation prior to making a significant programming or placement change

• Right to be informed of proposed actions affecting the program

• Right to examine all relevant records and request changes

• Right to receive information in the parents’ native language or primary mode of communication

• Right to periodic reevaluations

• Right to an impartial hearing when a disagreement occurs

• Right to be represented by counsel in the hearing

• Right to appeal the hearing officer’s decision (p. 137)

To ensure that the rights of parents are upheld, schools are responsible for establishing a system of due process procedures to protect the rights of parents of students with disabilities. Schools are encouraged, but not required, to use the procedural safeguards of IDEA as a guide for ensuring the procedural safeguards of Section 504 are met.

For more information on Section 504, including information on evaluation, placement, procedures, and discipline, visit the Council of Educators for Students With Disabilities website (www.504idea.org/Council_Of_Educators/Resources.html).

Americans With Disabilities Act

Congress enacted ADA in 1990 to protect against discrimination of individuals with disabilities. While many ADA provisions are similar to those defined in Section 504, ADA provides even broader antidiscrimination coverage by protecting individuals in both public and private sectors (Marshall & Patterson, 2002). Although most provisions of ADA are already covered under IDEA and Section 504, there are a few additional situations in which ADA affects school operations. For example, under ADA, school districts must ensure that all school events are physically accessible to students with disabilities. Therefore, school districts are required to provide a barrier-free school environment including access to specialty areas of the school such as auditoriums and athletic stadiums (La Morte, 2005). Although there are no direct funds attached to ADA, many federal agencies offer grants to support training and technical assistance on ADA requirements. Also, businesses, organizations, and schools that are working on removing architectural or transportation barriers could be eligible for a tax credit. Visit www.ada.gov/publicat.htm for more information about ADA regulations, organizations that provide technical assistance, and funding opportunities that are available to help support the implementation of ADA regulations.

The purpose of this chapter was to provide a general overview of IDEA and its key provisions and provide a basic structure for understanding special education policies, including not only IDEA but also Section 504 and the ADA. In the next chapter, we turn our focus to the detailed process of determining student eligibility for receiving special education and related services and to the role of the principal throughout the eligibility and evaluation process.