Appropriate education as a process (IDEA)

• Process examines the child
• Nondiscriminatory evaluation
• IEP process-Special education and related services
• Placement in the LRE
• Parental involvement

Board of Education of the Hendrick Hudson Central School District v. Rowley-458 U.S. 176 (1982)

• Has the state complied with the procedures of the Act?
• Is the IEP reasonably calculated to enable the child to receive educational benefit?

Role of the Court

• Courts must be careful to avoid imposing their views of a preferable education.
• Proper role of court is to receive records of administrative proceedings, hear additional evidence, base decision on preponderance of evidence.

The purpose of the IDEA

• The intent of the IDEA is to open the door of public education to handicapped children.
• To establish a basic floor of opportunity consisting of access to specialized instruction and related services.
• Appropriate education does not have to result in the child achieving his/her maximum potential.

Incorporation of State Standards

• In addition to meeting federal standards special education must meet state standards.
• Higher, more demanding, or more stringent state criteria are permissible as long as not inconsistent with IDEA.
• Weaker state requirements defer to the IDEA.

Components of a Free Appropriate Public Education (FAPE)

• Public expense-Transportation, teacher aide, educational components
• Procedural requirements
• Individualized instruction- IEP
• Educational benefit
• Related services
• LRE

Scope of Related Services

• Transportation
• School nurse services
• Interpretation services
• Physical and occupational therapy
• Early identification and assessment
• Speech therapy
• Psychological service
• Social work services
• Counseling (parental and child)
• Parent counseling and training
• Assistive technology- 20 U.S.C. 1451-1454, 20 U.S.C. 1461-1462

Individualized Education Plan (IEP) - 34 C.F.R. Part 300

• Responsibilities of the multi-disciplinary team (MDT)

Referral- Teachers, counselors, or parents

Evaluation-MDT approach

• Responsibilities of the IEP team: to develop an educational program for the student
• Participants in IEP team: Parents/guardian, child's teacher (either special or regular education), representative of the school, child (where appropriate), others at discretion of either party
• Legal requirements: Time, Process, Accountability, Procedural safeguards
• Content of the IEP

Present level of performance

Specific educational services & extent of participation in regular program

Transition services

Date of initiation & projected duration

Annual goals

Appropriate objective criteria & evaluation procedures

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Zero Reject

Schools can not reject to serve students who:

• has one of the categories (mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities.
• has academic problems due to their disabilities.
  

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Least Restrictive Environment (LRE)

Rights of all students with disabilities to the maximum extent appropriate with nondisabled students. -Twenty years: Perspective of a special education-by Paushter, J. L.
LRE and Inclusion -20 U.S.C. 1412

Continuum of Alternative Placements -34 C.F.R. 300.17

• Regular Classroom
• Special Classroom
• Special Schools
• Home Instruction
• Hospital Instruction

Effect of Inclusion on Teacher and Peers -34 C.F. R. 300.552

Interrelationship between FAPE and LRE

• Any setting that does not allow the provision of a FAPE for a child...cannot be the LRE for that child.
• The decision as to what placement will provide a FAPE, including a determination as to the LRE in which appropriate services can be made available...must be on an individual bases-Secretary of Education

Litigation and LRE

• Roncker v. Walter 900 F. 2d. 1058 (6th Cir. 1983)
• Daniel P.R. v. State Board of Education 874 F. 2d. 1036 (5th Cir. 1989)
• Sacramento School District v. Rachel H. 14 F. 3d. 1398 (9th Cir. 1994)
• Clyde K. v. Puyallup School District 35 F. 3d. 1398 (9th Cir. 1994)

Principles of Case Law

• Presumptive right to education in general education classroom
• Schools must make good-faith efforts to provide education in the general education
• LRE must be based on individual needs of students
• Complete continuum of services must be available
• Students in more restrictive settings must be integrated to the maximum extent appropriate
• Schools must thoroughly document LRE decision making process
• When challenged, schools will bear the burden of proof

Consistent LRE Themes

• Appropriateness
• Individualization
• Options
• Integration/inclusion

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Procedural Safeguards

Due Process Requirements

• LEAs must establish and maintain procedures to assure that children with disabilities an their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.
• Opportunity to examine records (Family Educational Rights and Privacy Act, FERPA)
• Obtain an independent evaluation-A school has to give 10 day notice to parents
• Protection for child when parents are unavailable
• Written notice and consent prior to proposals to evaluate or place a child
• Notice in parent's native language
• Opportunity to present complaints
• Impartial due process hearing

South Carolina due process hearing rights

• Right to counsel
• Right to persons with specialized knowledge
• Right to present evidence, cross-examine, and compel attendance
• Right to prohibit entry of evidence
• Right to written or electronic records
• Right to obtain written findings of fact and law
• Right to have child in question present
• Right to an open hearing
• Stay-put provision
• Unfettered discretion to change placement could result in denial of FAPE
• Written notice and consent must precede a change in placement
• If the parents contest the placement the child must '"'stay-put'"'
  

Exhaustion Doctrine

• Administrative remedies
• Tiers
• Judicial review

Burden of proof

• Due process hearing-School always have the burden of proof
• Court proceedings-The party who contests has to appeal their case and has the burden of proof
• Due weight-A burden of proof accorded due process decision
• Reviewing court can take case de novo

Problems with Hearings

• Time consuming
• Financial burden
• Adversarial emotion

Proposed solution -Mediation requirement by trained mediator

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Reauthorization of IDEA

Major Issues: A good law better:The Individuals with Disabilities Education Act Amendments of 1995

• IEP's

Including both regular and special teachers in IEP team

Measurable goals

Eliminating short-term objectives

Triennial reevaluations-Optional

• A new disability category- Attention Deficit Hyperactivity Disorder(ADHD)
• Eligibility

Categories and single functional definition (Mental and physical disabilities that require special services)

Funding formulas: 12% of funding by state population note by the number of special population-Less emphasis on labeling

• Due Process

Mediation (States have to offer mediation for parents and schools without having lawyers.)

Good faith efforts: Parents do not pay attorney's fees unless they went through mediation process. Unilateral placement and independent education evaluation

Discipline Issues

• Dual disciplinary standard

Out-of-school suspension: Students with disabilities can not have out-of-school suspension more than 10 school days.

Students with disabilities can not be expelled.

• Gun Free Schools Act & Jeffords Amendment: Schools have to expel a student who brings a gun for a year. Students with disabilities who bring a gun can be put in an alternative placement for 45 days. Students remain in the alternative placement during due process by parents.
• The '"'Relationship Test'"': Testing if the student's conduct is related to his/her disability
• Honig escape valve: The judge can expel if the students with disabilities are considered dangerous when the school brings the case before the judge.

Potential Changes

• Expansion of Jeffords Amendment

Change of 'gun' to 'weapon'

May include dangerous or violent students

Hearing officers may issue '"'Honig'"' injunctions (not the judge)

Interim placement from 45 days to 90 days

• Relationship test
• Behavior management plan (have to be in IEP if the student presents dangerous behavior)

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Comments:

Written by Ju-Hye Yook in April 8, 1996