Education and Disabled
Students
Education and Disabled Students:
Rights, Entitlements and Privileges Under Federal,
and State Law.
I. Introduction
In the State of Tennessee as well as all other
states, developmentally disabled, learning disabled
and, in some states gifted children, are entitled, by
both Federal and State Law to a free public (not
private or parochial) education through grade 12,
tailored specifically to their individual needs with
the appropriate resources necessary to implement that
education. This is not considered a benefit under
state and federal law, but an entitlement by right of
citizenship. In Brown v. Board of Education,
the famous 1954 United States Supreme Court Case on
the right to an equal education, the opinion of the
Court stated, "In these days it is doubtful that
any child may reasonably be expected to succeed in
life if he is denied the opportunity of an education.
Such opportunity, where the state has undertaken to
provide it, is a right which must be made available
to all on equal terms." As a result, denial of
such an education is a violation of the child's civil
rights and is enforceable by federal civil rights
enforcement authorities or, in the course of state
law, state enforcement action.
II. Definition of a Handicapped Person at 34
CFR 84.3
A. General Definition relating to Section
504 of the Rehabilitation Act of
1973, the broadest for training
:
Subsection (j) Handicapped person. (1) Handicapped
persons means any person who (i) has a physical
or mental impairment which substantially
limits one or more major life activities, (ii) has a
record of such an impairment, or (iii) is regarded as
having such an impairment.
B. Specifics
(2) As used in paragraph (j)(1) of this section,
the phrase:
(i) Physical or mental impairment means (A) any
physiological
disorder or condition, cosmetic disfigurement, or
anatomical loss
affecting one or more of the following body systems:
neurological;
musculoskeletal; special sense organs; respiratory,
including speech
organs; cardiovascular; reproductive, digestive,
genito-urinary; hemic
and lymphatic; skin; and endocrine; or (B)
any mental or psychological
disorder, such as mental retardation, organic brain
syndrome, emotional
or mental illness, and specific learning
disabilities.
(ii) Major life activities means functions
such as caring for one's
self, performing manual tasks, walking, seeing,
hearing, speaking,
breathing, learning, and working.
(iii) Has a record of such an impairment means has a
history of, or
has been misclassified as having, a mental or
physical impairment that
substantially limits one or more major life
activities.
(iv) Is regarded as having an impairment means (A)
has a physical or
mental impairment that does not substantially limit
major life
activities but that is treated by a recipient as
constituting such a
limitation; (B) has a physical or mental impairment
that substantially
limits major life activities only as a result of the
attitudes of others
toward such impairment; or (C) has none of the
impairments defined in
paragraph (j)(2)(i) of this section but is treated by
a recipient as
having such an impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person
who, with
reasonable accommodation, can perform the essential
functions of the job
in question;
(2) With respect to public preschool
elementary, secondary, or adult
educational services, a handicappped person (i) of an
age during which
nonhandicapped persons are provided such services,
(ii) of any age
during which it is mandatory under state law to
provide such services to
handicapped persons, or (iii) to whom a state is
required to provide a
free appropriate public education under section 612
of the
Education of the Handicapped Act; and
(3) With respect to postsecondary and vocational
education services, a handicapped
person who meets the academic and technical standards
requisite to admission or
participation in the recipient's education.
III. History
In 1975 the United States Congress enacted the Education
for All Handicapped Children Act, P.L. 94-142. In
1983 P.L. 98-199 amended the law and again in 1986
under P.L. 99-457. With the amendment and
reauthorization in 1990 under P.L. 101-476 the law
changed names and became known as the Individuals
with Disabilities Education Act (IDEA). This law
requires a free appropriate public education be made
available for all disabled children and young adults
with disabilities from ages three to twenty-one (the
most recent change is that there is now some toddler
intervention allowed). The most resources are
concentrated, in the public school systems. Some
resources will be cooperatively shared with private
schools, primarily if the best training facilities
are private schools and the public school system
actively places disabled childen in these facilities
for learning purposes.
IV. Key provisons of IDEA
The active identification of children with special
education needs and their appropriate evaluation
prior to placement;
The construction of an Individualized Education
Program with parents included in the planning process
(and amended this last year, 1999, to require
parental control and approval of any placement),
with all appropriate related services included to
support the Individual Education Plan (IEP);
Mainstreaming of the children into classes with
their peers to the greatest extent possible;
When children are placed in private schools by
state or local education agencies for the child to
receive an appropriate education, there is no cost to
parents and the school must meet legal standards.
The law encourages pre-school programs by
incentive grants for ages 0 to 5 years of age.
A. SUPPLEMENTAL PROVISIONS TO IDEA
The amendments to the original Act also provide
for important services to the child and the parents
or legal guardian. P.L. 98-199, the 1983 amendments
to IDEA provides for special services and technical
assistance to the deaf-blind individual. This law
also provides for parent training and follow-up
support for the child's education. Under the 1986
Amendments to IDEA the family became the focus, and
the ages for intervention went from three years of
age to birth and centers on an interagency approach
for assistance. The Rules for implementation of these
programs may be found in the Combined Federal
Register at 34 CFR 300. et. seq.
Parents and educational planners should also be
aware that the Rehabilitation Act of 1973,
P.L. 93-112 also has implications for the education,
vocational training and employment of the disabled.
This particular piece of legislation includes both
actual and perceived handicaps as well as conditions
that are not normally considered handicapping such as
some types of addictions, amputees, the temporarily
handicapped or disabled individuals who may not
necessarily need special education. Section 504 of
the Act requires nondiscrimination and equal
accessunder federal grants for students and is
monitored by the Office for Civil Rights of the U.S.
Department of Education. Under Section 504
the definition of handicapped recognizes a person
with a physical or mental impairment which
substantially limits a major life activity such as:
caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, or learning and
working ( psychological impairment and Attention
Deficit Disorder have been specifically added in the
most recent amendments). Section 504 also
provides that children must be educated in the most
normal setting possible and have access to programs
for those with disabilities such as braille reading
materials, sign interpreters for the hearing
impaired, reader services and TDD machines for
telephone communications. Rules for the Act are
contained in 34 CFR 104, et. seq.
There are other statutes which also impact
training, education, support, and the ability of the
disabled to earn an independent living. Some of these
are: The Americans with Disabilities Act,
P.L. 101-336, The Handicapped Children's
Protection Act, P.L. 99-372 (which provides
attorney fees for parents or guardians seeking
implementation of programs in court, and who win
their case), the Family Rights and Privacy Act of
1974, and the Carl Perkins Vocational
Education Act, P.L. 94-482.
B. CURRENT DEVELOPMENTS IN THE APPLICATION
OF DISABILITY EDUCATION PROVISIONS.
1. On February 7, 2000 President Clinton released
his federal budget request for FY 2001. The $41.1
billion budget for education represents the largest
jump in discretionary spending in the history of the
Department of Education. This budget includes a total
of $6.4 billion for Special Education programs, which
is an increase of $333 million or 5.5 percent over
the FY 2000 level. Included in this budget are a $290
million increase for the Part B Grants to States
program, as well as increases in other programs
providing direct services, and those supporting
systems change, research, demonstration, technical
assistance, and training activities.
2. Rep. Matthew Martinez (D-CA) introduced a bill
on January 27 that would authorize enough additional
Part B money for the next 10 years to reach the 40
percent funding mark by 2010. H.R. 3545, the
"IDEA Full Funding Act of 2000,"
acknowledges that although the federal government
committed to contributing up to 40 percent of the
national average per pupil expenditure to educate
children with disabilities, that figure has never
exceeded 13 percent of states' costs.
3. On January 4, 2000, the Department of Education
and the Justice Department jointly announced the
funding of EDJJ, The National Center on Education,
Disability and Juvenile Justice. This new
collaborative research, training, technical
assistance and dissemination program is designed to
develop more effective responses to the needs of
youth with disabilities in--or those at-risk for
involvement with--the juvenile justice system. This
center evolved from several years of collaboration
between the Education and Justice Departments as a
means to respond to the growing problem of youth with
disabilities being overrepresented in the juvenile
justice system.
4. On April 8, 2000 the Autism Resource Konnection
(ARK) will be hosting a rally in Washington, D.C to
promote National Autism Awareness. The rally will be
held on the Mall, between 3rd and 4th streets from
9:00 a.m. to 6:00 p.m.
Autism is a neurological disorder that affects more
than 500,000 American citizens and is now occurring
in as many as 1 in 500 if not more. ARK wants to
bring the Nation together to confront the issues
surrounding the epidemic numbers being reported in
some states. ARK hopes to raise the Awareness to
ensure increased government spending for research
into the causes and possible cures, obtain support
for legislation to make that possible, and to better
the services provided to educate and serve this
ever-growing population. Autism is one of a
spectrum of disorders which run from mild to severe
along a total spectrum and within itself.
V. From Learning Disability to ADHD to
Autism
A. LEARNING DISABILITIES
TITLE 45--PUBLIC WELFARE, PART 1308--HEAD START
PROGRAM PERFORMANCE STANDARDS ON SERVICES FOR
CHILDRENWITH DISABILITIES, has the following
eligibility provisions at Sec. 1308.14 concerning Learning
Disabilities:
(a) A child is classified as having a learning
disability who has a
disorder in one or more of the basic psychological
processes involved in
understanding or in using language, spoken or
written, which may
manifest itself in imperfect ability to listen,
think, speak or, for
preschool age children, acquire the precursor skills
for reading,
writing, spelling or doing mathematical calculations.
The term includes
such conditions as perceptual disabilities, brain
injury, and aphasia.
(b) An evaluation team may recommend that a child be
classified as
having a learning disability if:
(1) The child does not achieve commensurate with his
or her age and
ability levels in one or more of the areas listed in
(a) above when
provided with appropriate learning experiences for
the age and ability;
or
(2) The child has a severe discrepancy between
achievement of
developmental milestones and intellectual ability in
one or more of
these areas: oral expression, listening
comprehension, pre-reading, pre-
writing and pre-mathematics; or
(3) The child shows deficits in such abilities as
memory, perceptual
and perceptual-motor skills, thinking, language and
non-verbal
activities which are not due to visual, motor,
hearing or emotional
disabilities, mental retardation, cultural or
language factors, or lack
of experiences which would help develop these skills.
(c) This definition for learning disabilities applies
to four and
five year old children in Head Start. It may be used
at a program's
discretion for children younger than four or when a
three year old child
is referred with a professional diagnosis of learning
disability. But
because of the difficulty of diagnosing learning
disabilities for three
year olds, when Head Start is responsible for the
evaluation it is not a
requirement to use this category for three year olds.
Children qualifying under these definitions are
eligible for special accommodation under the Americans
With Disabilities Act.
More information on Learning Disabilities may be
viewed on my website at http://www.angelfire.com/tn/dpmcnamee
by accesssing my site map and scrolling down to the
explanation of learning disabilities by the National
Institute of Health about 3/4 of the way down the
page.
B. AD/HD UNDER THE IDEA
Under the 1997 Amendments to the Individuals
with Disabilities Education Act of 1997, and the
March, 1999, IDEA Regulations, "Other health
impairments means having limited strength, vitality
or alertness, including a heightened alertness to
environmental stimuli, that results in limited
alertness with respect to the educational
environment, that- (i) Is due to chronic or acute
health problems such as asthma, attention deficit
disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis, rheumatic fever,
and sickle cell anemia; and (ii) Adversely affects a
child's educational performance."
1. Keys to participation in IDEA:
a) the student must be diagnosed by the school
district or the district must accept the diagnosis
rendered by another qualified professional; b) The
ADHD must result in limited alertness to academic
tasks, due to heightened alertness to environmental
stimuli; c) The effects of the ADHD must be chronic
(long lasting) or acute (have substantial impact); d)
this must result in an adverse effect on educational
performance (tests,behavioral difficulties,
inappropriate social relations, impaired work
skills); e) The student must require special
education services in order to address the ADHD and
its impact.
2. Qualifying for special education services does
not mean placement in a special education class
setting. Special inclusive instruction within the
regular classroom is acceptable. The term
"special education" refers to the specially
designed services contained in the Individual
Education Plan (IEP).
3. If a diagnosis is made, the school system is
not obligated to follow it. They are obligated to
determine if an evaluation for services is necessary
and inform the parents of their decision. A parent,
private professional or the school staff have the
right to make a referral for evaluation. If the
school agrees to the evaluation it is to be performed
at no cost to the parents. If the parents are
dissatisfied with the evaluation, the parents may
request a subsequent evaluation at cost to the school
district.
4. A school district may not require that a child
be medicated. This is the exclusive decision of the
parents. Special Education or IEP services may not be
predicated on an agreement with the parents to
administer medication to the child.
5. Eligibility under Section 504 of the Rehabilitation
Act of 1973. The standard under Section
504 is broader and more flexible so an individual
qualified under Section 504 may not be qualified for
services under the more restrictive definition of the
IDEA.
B. THE IDEA REGULATIONS OF 1999
1. ADD and ADHD are classified as "other
health impaired".
2. States can use a Developmental Delay category
to serve children who have delays in social,
communicative, emotional or adaptive behavior, rather
than grade retention as a way to help a child catch
up to peers.
3. Individualized Education Programs (IEP) should
include: a) a statement of the child's current level
of performance and how the disability affects the
child's progress and participation; b) measurable
benchmarks and goals designed to meet the child's
comprehensive needs resulting from the disability and
to enable the child to progress and be involved in
the general curriculum;c) a statement of services
that will be provided to enable the child to
participate and progress in the general curriculum;
d) an explanation of the extent to which the child
will not participate with nondisabled children in
regular classrooms and activities; e) a statement of
modifications required for the child to participate
in district and statewide assessments or a statement
of why the assessment is not appropriate and what
alternatives will be used; f) the date of initiation,
frequency, duration, and location of services and
modifications; and g) a statement of how the child's
progress toward annual goals will be measured, and
beginning at age 14 the transition services a child
will need to prepare for work, post secondary
education, or independent living.
4. Appropriate testing modifications for statewide
assessment testing should be addressed in the IEP.
5. Parents must be provided an opportunity to
examine their child's records, participate in
meetings relating to: identification, evaluation,
educational placement and the provisions of a free,
appropriate, public education. Parents have the right
to be notified of and participate in all IEP meetings
and receive a copy of all IEP meeting reports at no
cost. They can also contribute information and invote
others who have special knowledge or information
about the child to attend meetings. If a child will
be in a regular classroom, at least one regular
educator must participate on the IEP team.
6. Schools are obligated to identify and evaluate
children suspected of having a disability even if
they are progressing from grade to grade. Evaluations
to determine eligibility must be sufficiently
comprehensive, including cognitive and behavioral
factors to identify all areas of need, whether or not
commonly linked to the disability category.
7. Because appropriate behavior is often an issue
for a child with ADHD, the IDEA instructs the IEP
team, including the regular educator to deal
proactively with anticipated behavior problems by
developing behavioral intervention plans including
appropriate and positive strategies, interventions,
and supports - based on an assessment and analysis of
a child's problem behaviors.
8. Suspensions and expulsions: children with
disabilities cannot be suspended or expelled for more
than ten consecutive days for behavior that is
related to their disability unless: a) the IEP and
placement were appropriate in relation to the
behavior, b) that special education services,
supplementary aids and services, and behavior
intervention strategies were provided consistent with
the IEP and placement, c) the child was able to
understand the nature and consequences of their
actions, and d) the child was able to control the
behavior. Educational services must continue during
suspensions and expulsions, except during the first
ten days of suspension or expulsion in a school year.
9. Schools can transfer students to alternative
educational settings for up to 45 days for possessing
or using illegal drugs or weapons, or if students are
proven to be substantially likely to cause harm to
themselves or others.
10. Mediation: mediation is encouraged, it does
not preclude parent's rights to a later due process
hearing. In fact the1997 reauthorization specifically
makes violation of a child's rights under the IDEA a
Federal Question, which can be litigated in Federal
Court, regardless of whether the law is state or
federally originated and regardless of the amount in
question.
VI. The Supremacy Clause of
the U.S. Constitution
The Constitution provides that the Constitution,
laws, and treaties of the United States are the
supreme law of the land. When there is a direct
conflict between a federal law and a state law, the
state law is held to be invalid.
When Congress chooses to act exclusively in an
area of concurrent federal and state powers, it is
said to preempt the area, and a valid federal statute
or regulation will take precedence over a conflicting
state or local law on the same general subject.
Generally, congressional intent to preempt will be
found if the federal law is so pervasive,
comprehensive, or detailed that the states have no
room to supplement it. Also, when a federal statute
creates an agency to enforce the law, matters that
may come within the agency's jurisdiction will likely
preempt state laws. State regulations are preempted
by federal law and local and municipal regulation are
preempted by both.
(Instructor's Comment: In order to
participate in the reauthorization of the IDEA in
1997, by an amendment attached to the IDEA, states
were required to enact what is known as a
"zero-tolerance" policy. The intent of
Congress and the gentleman from Mississippi who
sponsored the legislation appears to have been to
protect school staff and students from offenders who
knowingly bring firearms ordangerous street drugs
into the school. Special education students were
included in the zero-tolerance laws, enacted at the
state level, by not specifically excluding them. The
IDEA itself and federal rules enacted in support of
the reauthorization of IDEA were quick to point out
that the discipline and expulsion must be evaluated
for special education students on a case by case
basis.)
VII. State Law and State Rules and
Regulations, Tennessee As An Example.
A. SAMPLE PROVISIONS OF A ZERO TOLERANCE
LAW REQUIRED FOR STATE PARTICIPATION IN IDEA FUNDING
UNDER THE 1997 REAUTHORIZATION
1. Tennessee Code Annotated (T.C.A.)
49-6-4216. School policies and procedures - Contents
- Notice to students and parents.
(a) Prior to commencement of fall classes for the
1996-1997 school year, and annually
thereafter, each local and county board of education
shall file with the commissioner of
education written policies and procedures developed
and adopted by the board:
(1) To ensure safe and secure learning
environments free of drugs, drug paraphernalia,
violence and dangerous weapons; and
(2) To impose swift, certain and severe disciplinary
sanctions on any
student:
(A) Who brings a drug, drug paraphernalia or a
dangerous weapon onto a school bus,
onto school property or to any school event or
activity; or
(B) Who, while on a school bus, on school property or
while attending any school event
or activity:
(i) Is under the influence of a drug; or
(ii) Possesses a drug, drug paraphernalia or
dangerous weapon; or
(iii) Assaults or threatens to assault a teacher,
student or other person.
[Acts 1996, ch. 888, § 1; 1998, ch. 871, § 1.]
2. State law is not exempt from the Supremacy
Clause.
3. Codes of Conduct at Public School Board level,
because of the Supremacy Clause of the U.S.
Constitution must insure that they are not preempted
by federal law or regulations to remain in
compliance. For example Nashville, Davidson County
Tennessee Code of Student Conduct was Revised June
22, 1999, three months after the final federal
regulations for IDEA were promulgated. Despite the
knowledge that federal the IDEA and new final
regulations were in place the Metropolitan Public
Schools used the following terms to apply to special
education students in addition to regular students:
threat, battery, assault , intimidation (all
intentional torts or crimes with an intent element or
Mens Rea), passive resistance. The definition the
school system chose to use for threat, for example,
states that a threat is, "A communicated intent
to inflict physical or other harm on any person or on
property." They cite Black's Law Dictionary.
They do not state that this is a Minnesota case not
applicable in Tennessee, a not unheard of error made
usually in the interest of the drafter's time and
understanding. The case State v. Schweppe,
Minn., 237 N.W. 2d 609,615,.
a) Tennessee is a common law state. As a common
law state, Tennessee more closely approximates the
definition on the same page and in the same paragraph
of the legal dictionary used for the Nashville
Student Code, that is, "The term 'threat' mean
an avowed present determination or intent to injure
presently or in the future. A statement may
constitute a threat even though it is subject to a
possible contingency in the maker's control.
The prosecution must establish a "true
threat" which means a serious threat as
distinguished from words uttered as mere political
argument, idle talk or jest. In determining whether
words were uttered as a threat the context in
which they were spoken must be considered.
b) Intent: under common law "intent is used
throughout the Restatement of Torts, 2d. to denote
that the actor desires to cause the consequences of
his act, or that he believes that the consequences
are substantially certain to result from it. Intent
and motive should not be confused. Motive is what
prompts a person to act, or fail to act. Intent
refers only to the state of mind whith which the act
is done or omitted." This comes from page 727 of
the same edition of the Black's Law Dictionary quoted
by the Nashville schools.
c) Assault is another term used which requires a
mental component over which the perpetrator has some
control of his functioning. From page 105 of the same
edition of the Black's Law Dictionary quoted by the
Nashville schools, assault of the most simple type is
defined as when a person "a) attempts to cause
or purposely, knowingly or recklessly causes
bodily injury to another; or (b) negligently causes
bodily injury to another with a deadly weapon; or (c)
attempts by physical menace to put another in fear of
imminent serious bodily injury" Model Penal Code
section 211.1.
3. In evaluating a (disabled) special education
student for disciplinary purposes such as suspension
or expulsion, under federal law and regulations, the
student must understand that the action they took was
wrong, know the difference between right and wrong,
and the action must have been under the control of
the student and not a result of their disability.
Under the provisions of the preceeding state statute,
any student, regardless of disability is to be
disciplined. All state, local, or municipal policies
and procedures in conflict with the Federal Rules are
preempted. 34 CFR Sec. 300.523 Manifestation
determination review.
B. KEY PROVISIONS OF TENNESSEE LAW ON
EDUCATION FOR THE DISABLED.
Much of Tennessee Law dates to the earlies
inception of the IDEA as the IDEA in 1990. Some
updates and changes may be warranted, but for the
most part the intent and requirements remain the
same.
1. T.C.A. 49-10-101 Legislative intent
- Application of parts 1-6. (Enabling statute)
(a) (1) (A) It is the policy of this state to
provide, and to require school districts to
provide, as an integral part of free public
education, special education services sufficient
to meet the needs and maximize the capabilities of
children with disabilities.
(B) [Deleted by 1998 amendment.]
(2) The timely implementation of this policy to the
end that all children with disabilities
actually receive the special education services
necessary to their proper development is
declared to be an integral part of the policy of this
state.
(b) This section applies to all children with
disabilities regardless of the schools,
institutions or programs by which such children are
served.
2. T.C.A. 49-10-103. Special services to
be provided - Avoidance of separate schooling.
(c) (1) To the maximum extent practicable, children
with disabilities shall be educated
along with children who do not have disabilities and
shall attend regular classes.
(2) Impediments to learning and to the normal
functioning of children with disabilities in
the regular school environment shall be overcome by
the provision of special aids and
services rather than by separate schooling for the
disabled.
3. T.C.A. 49-10-108. Testing for
disabilities.
(a) (1) Every school district shall test and examine,
or cause to be tested and examined,
each child attending the public and private schools
within its boundaries in order to
determine whether such child is disabled.
(2) The tests and examinations shall be administered
on a regular basis in accordance
with rules and regulations of the state board of
education.
4. T.C.A. 49-10-109. Denial of state aid
for noncompliance - Direct administration by
state.
(a) (1) If a school district is found by the
commissioner of education to have failed to
provide necessary education to all children with
disabilities who by law are entitled to
receive the same from such school district, the
commissioner may withhold all or such
portion of the state aid for the regular public
schools as, in the commissioner's judgment,
is warranted.
5. T.C.A. 49-10-114. Individualized
education programs for children with disabilities.
Except when a written explanation to the contrary is
included, the individualized
education program of a child with disabilities will
include:
(1) Prevocational career education for pupils in
kindergarten (K) and grades one (1) to
six (6), inclusive, or pupils of comparable
chronological age; and
(2) Vocational education, career education, or work
experience education, or any
combination of these, including independent living
skill training for pupils in grades
seven (7) to twelve (12), inclusive, or comparable
chronological age.
6. T.C.A. 49-10-115. Educational program
directory for preschoolers with disabilities.
The department of education is hereby directed to
print a "Directory of Educational
Programs for Preschool Children with
Disabilities" which 20 U.S.C. § 1476 requires
each
state to maintain. To the extent such funds are
available, the printing of such directory
shall be funded from moneys received by the state
under grants awarded under 20 U.S.C.
§ 1473.
7. T.C.A. 49-10-601. Administrative
review.
(a) A child, or such child's parent or guardian, may
obtain review of an action or
omission by state or local authorities. (This is one
of the sections which needs overhaul in response to
changes in Federal law because it presupposes that
the school system, not the parents as in Federal law,
are in control of the final placement of the child.)
8. T.C.A. 49-10-602. Enforcement of
provisions - Speedy implementation.
Nothing in parts 1-6 of this chapter shall be
construed to limit any right which any child
or the child's parent or guardian may have to enforce
the provision of any regular or
special educational service, nor shall the time at
which school districts are required to
submit plans or proceed with implementation of
special education programs be taken as
authorizing any delay in the provision of education
or related services to which a child
may otherwise be entitled.
9. There are other provisions as well that prevent
a student from being suspended or expelled for more
than 10 days without services being provided to
continue the education of that child.
C. TENNESSEE'S RULES AND REGULATIONS
While currently in effect, Tennessee's Rules and
Regulations are being rewritten. to reflect the
requirements of the June, 1997, IDEA reauthorization.
D. RECENT SUPREME COURT ACTIONS
In a decision applauded by the disability community,
the U.S Supreme Court ruled on March 3 that disabled
students are entitled to necessary
"non-medical" services, irrespective of
cost to the school district, under the Individuals
with Disabilities Education Act (IDEA). Cedar Rapids
Community School Dist. v. Garret F., 119 S. Ct. 992
(1999). The landmark case focused on a school-aged
boy, Garret Frey, who is quadriplegic and needs a
trained aide to provide him with extensive assistance
while he is in school. (Garret breathes only with the
help of a ventilator). The Supreme Court affirmed an
Eighth Circuit decision holding that under IDEA, the
school was in fact required to provide the trained
aide. The Court agreed that, in order for Garret to
enjoy the "free, appropriate public
education" to which he is entitled under IDEA,
he needs the "related services" of a
full-time aide. IDEA guarantees that a school
district will cover the costs of all "related
services" associated with offering a child
suffering from a disability a public education. The
Court held that as long as a student's physical needs
can be met by someone who is not a doctor, the
required services do not fall within the excluded
"medical services" category. This case
represents a milestone for children with mental and
physical disabilities. Many children with mental
illness have been denied educational opportunities by
school districts reticent to address or pay for the
multiple services they require. With this decision,
it will be more difficult for school systems to deny
services to children with severe mental illnesses and
other disabilities.
There are concerns, however, that the Supreme Court's
decision may encourage Congress to amend IDEA to
limit the obligations of school districts to pay for
"related services" under the law.
Nevertheless, at least in the short term, the
decision marks a victory for student-age individuals
afflicted with disabilities.
VIII. IDEA Litigation Challenging State
Noncompliance
A. INTRODUCTION
Under the Individuals with Disabilities Education Act
(IDEA), parents and families of children with
disabilities play a key role in enforcing the law.
They initiate litigation and raise issues that
otherwise may not gain attention. In order to pursue
these issues, parents must find attorneys who are
knowledgeable about IDEA and willing to accept cases
where fee payment may be deferred or delayed until
the case is settled. In other words, the attorney may
not get paid unless the client wins and the court
awards attorney's fees. Damages are rarely awarded in
these cases, which are often protracted and
expensive. During the pendency of the cases, until
they are settled, the attorneys must be in a position
to work without compensation.
Litigating attorneys in the private bar who are
experts on IDEA are not commonplace. Frequently
specialty public interest organizations will accept
such cases. The Protection and Advocacy systems
(P&As), which provide legal representation and
advocacy for people with disabilities in every state
in the country, represent families in many special
education cases.
"As you look at the priorities that are being
set by the [P&As], almost all of our cases now
are expulsion/suspension cases. We're just trying to
keep kids in the classrooms."-- Curt Decker,
Executive Director, National Association of
Protection and Advocacy Systems (NAPAS), on the need
for OSEP to fund legal advocacy for parents[289]
They are federally funded to provide such support.
Nonprofit organizations such as the Disability Rights
Education and Defense Fund (DREDF), the contractor
for this report, also provide such representation,
but usually without federal funding. Both
organizations report that they do not have sufficient
resources to respond to all the requests for
assistance that they receive from parents of students
in special education. Without adequate support these
organizations are unable to assist parents in raising
issues, such as the following ones, which generate
IDEA compliance.
B. SUMMARY OF LITIGATION IN CALIFORNIA,
ILLINOIS, and TEXAS
In three recent cases, parents have challenged their
state's monitoring and enforcement system in failing
to address local noncompliance. Although the local
education agency (LEA) and, ultimately, the state
education agency (SEA) have responsibility for
ensuring FAPE to all children with disabilities in
the state, when the LEA fails in its responsibility
to provide services and the SEA fails to properly
monitor and enforce the law, as the following cases
reflect, the burden of enforcement falls on parents.
In Corey H. v. Board of Education of the City of
Chicago, Chicago public school students with
disabilities brought a class action against both the
City of Chicago Board of Education (CBE) and the
Illinois State Board of Education (ISBE).[290] The
students sought declaratory and injunctive relief to
correct CBE's and ISBE's widespread failure to
educate children with disabilities in the least
restrictive environment (LRE).[291]
Although CBE agreed to settle with an extensive plan
for correcting the LRE violations, ISBE continued to
argue that it fulfilled the IDEA's LRE mandate.[292]
ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires
only that it provide oversight and general
supervision of CBE's LRE efforts.[293] ISBE also
argued that its monitoring efforts were adequate
because OSEP had approved Illinois' state plan
including its monitoring plan. The court, however,
found that Congress intended to place final
responsibility and accountability in one agency, and
held that once ISBE had accepted IDEA funds, it was
responsible to ensure compliance with the IDEA's LRE
requirements.[294] As the court put it, "the
evidence presented at trial demonstrates beyond doubt
that, despite the fact that the LRE mandate has been
on the books since 1975, the Chicago public schools
have languished in an atmosphere of separate and
unequal education for children with emotional,
mental, and behavioral difficulties."[295] The
fact that OSEP may have approved Illinois' plan was
not dispositive.[296] The court affirmed the right of
parents to enforce their children's rights and ensure
compliance with IDEA independent of OSEP's actions or
inaction. To the court, ISBE clearly violated its
duty to establish its own effective monitoring and
enforcement system.[297]
The Corey H. court found numerous systemic failures
in ISBE's monitoring and enforcement of IDEA's LRE
requirements: students with low-incidence
disabilities were placed in highly restrictive
placements, ISBE's funding formula perpetuated
segregating children with disabilities, and when the
CBE failures were pointed out to ISBE, ISBE took
little or no action to ensure the failures were
corrected.[298] The court ordered the ISBE to
identify and correct its LRE violations, inform its
teachers and administrators of their IDEA
responsibilities regarding LRE implementation,
certify teachers according to LRE requirements, and
establish a state funding formula that reimburses
local agencies for educating children in the least
restrictive environment appropriate to their
individual needs. The court has since appointed its
own expert to develop an effective monitoring and
enforcement system for Illinois. A monitoring system
currently in development will closely follow the
focused monitoring approach being tested in Texas.
Another recent case challenging a state's failure to
monitor and enforce LEA compliance with IDEA is Angel
G. et al. v. TEA. Filed in 1994, this case was
brought by parents on behalf of their children who
resided in Texas Residential Care Facilities (RCF).
The case alleged that the Texas Education Agency
(TEA) failed to meet three responsibilities required
of a state education agency by IDEA: (1) child find,
(2) development of interagency agreements, and (3)
effective monitoring and enforcement of LEA
compliance with IDEA.
In 1996, the court in Angel G. approved a settlement
agreement that resolved both the child find and
interagency agreement issues but left open the issue
of the effectiveness of TEA's monitoring system. TEA
continued to fail to assure that its RCFs provide a
free appropriate public education (FAPE) to children
and youth with disabilities who reside in these
facilities. An independent consultant issued a report
finding TEA's monitoring system to be
"fundamentally flawed" and recommended that
TEA convene a group of experts to develop a
replacement or supplemental system of special
education monitoring. TEA initially refused to
implement this recommendation but later informed the
court that it had made substantial changes to its
current monitoring system to ensure compliance with
IDEA. The court requested that each party submit
their plans for an effective special education
monitoring system and held oral argument on the
adequacy of these plans. Following this hearing, the
court issued an order setting the case for an
evidentiary hearing to begin on August 9, 1999, and
to continue as needed.[299] At this hearing, the
court will examine "whether the components of
the plan TEA filed in this case on August 14, 1998,
are adequate to enable TEA to meet its burden as an
SEA...."
In the most recent of these cases challenging the
state's monitoring system, a group of eight children
with disabilities in East Palo Alto, California,
brought a class action lawsuit in November 1996
against their school district, the Ravenswood City
Elementary School District, for extensive violations
with all of the substantive and procedural
requirements of IDEA;[300] (e.g., failure to provide
FAPE, extensive LRE violations, failure to ensure
parent participation, utilizing discriminatory
evaluation procedures, etc.).
The plaintiff children in this case, Emma C. v.
Eastin, also sued the California Department of
Education (CDE) for failing to monitor and enforce
the law despite repeated findings of noncompliance in
the school district.
After a period of intensive law and motion activity,
the U.S. district court made a number of critical
rulings in Emma C. The court held that (1) all
available remedies, including money damages and
compensatory education, are available under IDEA
against the CDE and against members of California's
Board of Education in their individual capacities;
(2) that the nature of the systemic problems alleged
in the suit made exhaustion of administrative
remedies futile and therefore unnecessary; and (3)
that the CDE was at that time incapable of ensuring
compliance in the district because of the substantial
inadequacies in its own monitoring and complaint
systems.[301] The court certified a class comprised
of all past, present and future special education
students in the district.
Following these court rulings, the plaintiff children
in Emma C. and the CDE entered into a tentative
settlement agreement in which CDE agreed to undertake
a comprehensive step by step approach to bring
Ravenswood into compliance. Plaintiffs also reached
agreement with the district in which the district
primarily agreed to abide by any corrective action
plan developed by the state and independent monitors
and provided for compensatory education to all
eligible children.
Plaintiffs and the CDE are negotiating an agreement
to change California's monitoring system to the
focused monitoring approach proposed by the
plaintiffs in the Angel G. litigation. The CDE has
taken substantial steps already to convert to this
approach, including commitment to a pilot program to
test whether it will result in greater compliance.
C. DEVELOPMENT OF MORE EFFECTIVE MONITORING
SYSTEMS
A group of these experts convened by the plaintiffs
designed a proposed focused monitoring system for
Texas.[302] Known as the Chicago Group because the
meeting was held in Chicago, these experts continue
to flesh out the details of the system.[303] In
addition, advocates and experts in the states of
Texas, California, and Illinois are reviewing the
proposed system to refine and delineate it and
address the many related complex issues. The state of
California has committed to adopting this focused
monitoring system and planned to conduct its first
pilot program in 1999. The following is an overview
of the proposed focused monitoring system.
The Texas work articulated five principles that
provide the underpinnings for an effective state IDEA
monitoring system. The system must (1) address all
legal requirements and educational results for
students, (2) include public involvement, (3) build
on existing student data to increase system
efficiency, (4) direct resources to areas of greatest
need, and (5) result in timely verification or
enforcement of compliance. Their approach is based on
the notion of continuous improvement with a
data-based accountability system.[304]
The three components of the compliance monitoring
system are (1) performance review, (2) policy review,
and (3) complaint management. These three system
components take place within the context of three
ongoing activities: (1) the Comprehensive System of
Personnel Development (CSPD), (2) oversight and
enforcement, and (3) data design, analysis, and
review.[305]
At the heart of this system is the performance review
process, which works as follows. The state agency
conducts a performance review of each LEA. The
outcome of the review is used by the SEA, in part, to
place LEAs into one of four categories: (1)
Continuous Improvement District --no additional
compliance activities required by the state agency;
(2) Data Validation District--sixty LEAs randomly
selected annually to verify reported data and examine
procedural compliance; (3) At-Risk
District--self-study supplement to district
improvement plan required; or (4) Focused-monitoring
district--on-site investigation of specific areas of
noncompliance conducted by the state.[306]
In order to determine the category of each LEA, the
state must develop a template for analyzing special
education performance data and measuring compliance.
Critical variables or indicators must be determined.
Variables could include measures of graduation rates,
drop-out rates, academic achievement levels, and
placement (LRE) data. Standards must be developed for
three types of trigger values. The first trigger
value, which would apply to each variable, is the
"at-risk" trigger. This trigger identifies
LEAs that are "at risk" in their
performance in that area. Critical variables would
receive one trigger in addition to the "at
risk" trigger. The second trigger for critical
variables is the focused monitoring trigger, which
identifies the districts that will receive a focused
monitoring visit. The third value is used as a
benchmark for each critical variable. The benchmark
serves as the statewide performance goal for the
critical variables designed to improve the
performance levels.[307]
The focused district monitoring occurs when an LEA
exceeds the trigger for any critical data variable.
The state creates an investigation plan that is
tailored to the identified areas of noncompliance
prior to the visit. The plan is individualized for
each LEA and must incorporate several features
including focusing on measurable data that indicate
compliance or noncompliance with the identified
issue, classroom observation, and input from parents
and students. Districts that are designated as
"at-risk" or "focused monitoring"
must have plans for correcting areas of
noncompliance. Technical assistance and personnel
training should be provided to the LEA by the SEA if
needed. The SEA must develop written procedures that
outline the progression from noncompliance findings
to enforcement so that they are consistently applied
for each noncompliant LEA. These procedures should be
clear to LEAs so that there is no doubt about the
consequences for ongoing noncompliance.[308]
Likewise, the state must have a system of progressive
sanctions to use whenever any LEA fails to correct
noncompliance within a specific time line. The
proposed range of sanctions is as follows in
ascending order:
Mandatory First-Level Sanctions require the state to
send a letter of continued noncompliance to all
families of students with disabilities served by the
LEA and members of the state legislature.
A public hearing is held by the district's school
board and the noncompliance information is a
consideration in the evaluation of the LEA
superintendent and relevant principals.
Mandatory Second Level Sanctions, which are to be
implemented within 60 days of the first level of
sanctions if noncompliance continues, require lowered
accreditation of the noncompliant LEA and suspension
or termination of responsible administrative
officials.
Mandatory Third Level Sanctions, which are imposed 60
days after Level 2 sanctions if noncompliance
continues, require a choice of one of the following
options: (1) transference of federal and state
special education funds to a neighboring LEA for
oversight of the provision of special education in
the noncompliant district; (2) partial withholding of
federal and state special education funds while the
LEA must continue to provide required services; (3)
withholding of all federal and state special
education funds while the LEA must continue to
provide required services; and (4) recovery by the
state of previously awarded federal and state
funds.[309]
The elements of this proposed system have potential
for correcting some long-standing weaknesses in
Texas, California, and Illinois state monitoring. The
proposed system has been implemented on a
"pilot" basis only in California; more time
is needed to test its effectiveness.
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