Families with Children with Disabilities
by George Shake
Parents of children with disabilities have many rights, powers and duties for their children to receive an appropriate education. Special Education Law involves the complex interplay of federal, state and local law.
Special education is quite a modern accomplishment. Before 1975, many students with disabilities were simply denied access to schools. There were several important federal laws which provided some funding for some services before 1975, but they were modest and not universal. In 1975, the U.S. legislature enacted the Education for All Handicapped Children Act (Public Law 94-142). The current version of this law is enacted as the Individuals with Disabilities Education Act (IDEA). IDEA, and the Department of Education regulations which supplement it, are extensive and complex. Each state then enacts state legislation and regulations to ratify, and in many cases expand these.
About 10percent of students in public schools receive special education. Schools are required to provide these services as long as they accept federal educational funds. Some of the most common disabilities under which students qualify to receive special education are Speech Impairments and Learning Disabilities. In special education jargon, these are referred to as eligibility categories. There are 13 eligibility categories in all. Some of these categories are incredibly broad. For example, the condition of Emotional Disturbance may include many psychological conditions such as bipolar disorder, anxiety, depression and schizophrenia.
The term special education is simultaneously simple and complex. Special education is not a specific person, place or thing. At its core, special education is specially designed teaching methods, therapies, services, equipment and modifications to a student’s environment or curriculum. Special education is tailored for each individual student. A student’s Individualized Education Program (IEP) is designed to ensure that the student receives a Free Appropriate Public Education in the Least Restrictive Environment. These statements appear to be fairly straightforward. However, schools and parents do not always agree on what these terms mean.
Here are three steps for attorneys to consider in determining if their clients have a special education claim:
(1) Determine if the child is currently in special education. If your client is not sure, have them contact the Special Education department in their school district and ask. If the child is not in special education, your client’s possible claims have been drastically reduced. The most common claim at this juncture would be the school district’s failure to identify the child as having a disability. Generally, however, these types of claims are often quickly rectified by school districts by testing the child without the parent having to resort to formal legal action.
(2) If the child is in special education, determine why the parent is seeking legal assistance. The most common reasons include: delay of graduation, recommendation for the child to repeat a grade, expulsion, removal from a campus, suspension, removal from a regular classroom and disagreements about disability categories. These are all legitimate considerations for schools, but schools must honor all of the extensive rights granted to children with disabilities and their parents. Sometimes parents require assistance in asserting such rights.
It is critical for attorneys to receive an accurate report of exactly what action(s) a school is proposing or refusing regarding a specific student. It is equally important to understand what action(s) the parents want the school to take or halt. Copies of email correspondence between the parents and school employees can be incredibly enlightening. More formal documentation that can quickly answer these questions includes Notices, Invitations and IEP documents.
(3) If the child is enrolled in special education and a parent disagrees with the child’s current placement or evaluation reports, there are several remedies at the parents’ disposal. Attorneys can guide these clients through the procedures to make formal requests of the school. Attorneys can advocate for a child and the parents in a special education meeting (in Texas, this meeting is an Admission, Review and Dismissal Committee Meeting, elsewhere it is known as an IEP Committee Meeting). Finally, an attorney can represent the parent in (a) filing a formal complaint to the Texas Education Agency or Office of Civil Rights, (b) requesting mediation and/or (c) requesting a due process hearing with an administrative law judge (due process hearing officer).
An analysis of these three steps is critical in order to protect the rights of children with disabilities and the rights of their parents.
George Shake is an associate at Geary, Porter & Donovan, P.C. He can be reached at email@example.com.