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Special Education Article

Introduction to the sources of special education law.

Special education law is derived from a broad mix of federal and state law. On the federal level the law has its roots in the United States Constitution, statutes, regulation, administrative policies and procedures, and judicial decisions. The states must, generally, follow federal law but also have a state Constitution, statutes, regulations, judicial decisions, and administrative policies and procedures. Additionally, at the state level, a large portion of special education disputes are resolved through informal hearings, settlements, and administrative decisions.

When most people think of special education law the first impression is usually the individualized education program ("IEP"). The IEP is a requirement under the Individuals with Disabilities Education Act ("IDEA"). The IDEA is a very important piece of federal law that is implemented by state codes and regulations. However, a state’s special education program also receives guidance from Section 504 of the 1973 Rehabilitation Act (commonly referred to as a "504 Plan") and, to a lesser extent, the American's with Disabilities Act ("ADA"). Let's take a brief look at each of these areas of law:

Individuals with Disabilities Education Act ("IDEA")

The IDEA recognizes that children with special needs face unique challenges in obtaining an education. The key component of the IDEA is an "individualized education program" that meets the unique needs of your child. To receive special education and related services under the IDEA a child must be assessed and found eligible under a qualifying disability that has an adverse impact on educational performance. If eligible, an IEP team must meet annually to review and revise the program based on need and progress towards goals.

The core concept of the IDEA is the provision for a Free Appropriate Public Education ("FAPE") in the Least Restrictive Environment ("LRE"). Special education disputes often center around this concept, asking what is an "appropriate" education and is the student being educated to the maximum extent possible with non-disabled peers. Individualizing your child's educational program may range from providing modifications or accommodations in the general education classroom, special education and related services, to meet your child's needs or access the program, or a combination of both.

To develop an individualized program, the IDEA places an emphasis on parental participation as a member of the IEP team. The IDEA provides procedural safeguards to help ensure parental participation and requires consent at different times throughout the process of developing the IEP.

Section 504 of the Rehabilitation Act of 1973

The Rehabilitation Act of 1973 ("Section 504") is a civil rights law that provides an eligible individual protection against discrimination. In the context of education, a 504 Plan differs from the IEP in two key ways: eligibility and the general education. Eligibility requires a physical or mental impairment that substantially limits one or more major life activities. An eligible student is entitled to accommodations and modifications that ensure access to education that is equal to non-disabled peers.

Rather than individualizing the educational program, a 504 Plan is geared towards accessing the general education program. In California many of the special education and related services available under the IDEA are available to a student under a 504 Plan if needed. However, a 504 Plan lacks many of the procedural protections available under the IDEA.

From a practical standpoint the IDEA offers much more than Section 504; however, Section 504 goes places the IDEA does not, providing protections to qualifying individuals like student's with allergies or parents' in need of accommodations and modifications in order to participate in their child's educational process.

American's with Disabilities Act ("ADA")

The American's with Disabilities Act is also a civil rights law and operates like Section 504 in eligibility and the educational rights that it establishes. The purpose of both laws is equal access to individuals with disabilities through reasonable accommodations and modifications. In the public school setting the notable difference is both the IDEA and Section 504 require the educational institution to be accepting federal funds. In practice, Section 504 subsumes the ADA in the public school setting. One notable difference is that Title III of the ADA extends protections to "public accommodations" which includes a majority of nonsectarian private education institutions. This means that private schools must generally provide individuals with disabilities reasonable accommodations and modifications in examinations and activities.

Special education law extends into other practice areas

The IDEA, Section 504, and the ADA only scratch the surface of the law that might apply to situations arising in the context of special education. For example, special education operates within the context of general education. The laws that pertain to the general education setting also apply to special education students. Record requests and student observation may raise privacy issues. Situations that involve physical or emotional injuries may raise tort law claims. Disciplinary issues may involve juvenile or criminal law. In short, there's a lot of law to consider.

Written by Seth Schwartz, Esq. | Last updated: July 21, 2012
Copyright © 2012 the Law Offices of Schwartz & Storey.

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