Congress has enacted special education and broader disability laws (discussed below) that protect your child’s education needs. The most explicit tool is provided by a law known as the Education for All Handicapped Children Act of 1975 as Reauthorized under the Individuals with Disabilities Education Improvement Act of 2004. This law is otherwise referred to as the “IDEA.”
The “IDEA”
IDEA has two basic purposes. First, it mandates that all children attending public school have the opportunity for a “free and appropriate education” (FAPE). This entitles a child with known unique needs to special education services that meet state standards, are appropriate and are in conformance with an Individualized Education Program (IEP).
Secondly, the IDEA, is an outcome based statute. This means that it provides robust procedural safeguards designed to protect the rights of a child who is entitled to a tailored educational plan as memorialized in an IEP. Any state school receiving federal funds must ensure that procedures are in place to address parental due process grievances related to for instance, failure to implement special accommodations once they have been identified.
If the school fails to carry out an IEP properly, the child’s parent has a number of avenues available.
For instance, any “aggrieved” parent who believes that a child, with an IEP has not received a FAPE due to the school’s failure to implement statutory safeguards has the right to file a Due Process Complaint. If the parties agree to attempt resolution, a due process complaint can be resolved by mediation rather than a full-blown administrative hearing. This is a confidential process and results in a written settlement agreement limited to just the IDEA issues that are brought before the hearing officer. Often mediation will provide a resolution but not always. Or other times, only certain issues will be resolved and other issues are considered “ripe” for legal action. A legal professional may be required in order to assist in seeking judicial resolution by means of a state or federal court action.
If you believe your child is eligible for special education services you need the school to create an IEP that is uniquely tailored to his or her unique needs. Do not assume that the school will provide what the child needs. Instead, before sitting down to discuss an IEP tailored to your child’s special needs make sure you have an accurate overview of the child’s “present levels” as required by IDEA.
This will require identification of special needs by means of professional evaluations by objective professionals. Objective data from appropriate testing is the foundation for assessing all educational decisions pertaining to your child. Schools do not always have adequate resources to carry out in-depth objective testing. You may want to find a professional not associated with the school district.
If obtaining a proper evaluation for your child presents financial hardship, ask around in your community. Chances are that a social services program is available and will carry out testing for qualified children at no or low cost to the parent.
Once armed with objective data based on one or more evaluations, request an IEP meeting with the proper school official so that the school can review the data and determine whether your child has objective special education needs. An IEP is the charter document from which special needs services flow. If your child is qualified for an IEP do not assume that the school will craft an IEP in such a way that it captures all of your child’s needs.
Section 504 of the Rehabilitation Act of 1973
Rights arising under Section 504 can be contrasted with rights arising under the IDEA. This civil rights statute provides broader disability protection for students (and other individuals) with disabilities but lacks individualized educational protections. It also lacks the procedural due process safeguards inherent in the IDEA. But it is still a useful assistive tool for educators and it is not unusual for a school to issue a section 504 plan for a student with special needs.
The key portion states: No otherwise qualified individual with a disability in the United States , as defined in § 705(2) of this title shall solely by reason of her or his disability, be excluded from participating in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance .
To qualify for protection under Section 504, a child must have an “impairment” that “substantially limits” one or more activities.
Although Section 504 is a broader law than the IDEA it has proven to be an effective tool in special education cases because it is a civil rights law. Thus, if a school discriminates against or excludes a student with a known disability or discriminates against the parent for exercising rights on behalf of the child, what is known as a Section 1983 action for deprivation of civil rights may arise. Section 1983 presents a means for judicial redress due to damages caused by injuries sustained from the school’s negligence.
CONTACT WENDY EARLE, LAW IF YOU REQUIRE ANY OF THE FOLLOWING SERVICES:
If you need assistance in drafting a comprehensive Individualized Education Plan that captures and reflects all of your child’s special needs, do not hesitate to contact a legal professional who practices in the special education field.
If you believe your child’s Individualized Education Plan has not been carried out properly by school officials do not hesitate to contact a legal professional who may be able to assess whether you have a due process complaint.
If you have a child identified as handicapped or otherwise qualified for special education services who you believe has been subject to school discrimination do not hesitate to contact a legal professional who may be able to assess whether you have a claim against the school district.