Special Education: Legislation and Litigation

               Legislation refers to the laws mandated by a legislative body whereas litigation is clarifying of the certain legislation through court hearings and trials. In the field of special education, these legislation and litigation have paved the way to various changes and programs that benefit individuals with special needs. These have also served as the legal bases of the practices, programs and benefits that individuals with special needs can acquire through the help of different sectors of the society. Without these two, special education would have been much different.

Major Legislation in Special Education

IDEA (Individuals with Disabilities Education Act)

·         the revolutionary law which ensures that all children and youths with disabilities have the right to free, appropriate public education.

·         formerly known as PL 94-142 or Education for All Handicapped Children Act

·         amended in 1997 with the following provisions:

Identification	Extensive efforts to screen and identify all children and youth with disabilities
Free Appropriate Public Education (FAPE)	Every student with disability has an appropriate public education at no cost to the parents or guardians
Due Process	The students’ and parents’ rights to information and informed consent before the student is evaluated, labeled, or placed, and the right to an impartial due process hearing if they disagree with the school’s decisions.
Parent/Guardian Surrogate Consultation	The student’s parents or guardians are consulted about the student’s evaluation and placement and the educational plan; if the parents or guardians are unknown or unavailable, a surrogate parent must be found to act for the student.
Least Restrictive Environment (LRE)	The student is educated in the least restrictive environment consistent with his or her educational needs and, insofar as possible, with students without disabilities.
Individualized Education Program (IEP)	A written individualized education program is prepared for each student with a disability, including levels of functioning, long and short-term goals, extent to which the student will not participate in the general classroom and curriculum, services to be provided, plans for initiating and evaluating the services, and needed transitions services (from school to work or continued education)
Nondiscriminatory Evaluation	The student is evaluated in all areas of suspected disability and in a way that is not based by his or her language or cultural characteristics or disabilities. Evaluation must be by a multidisciplinary team, and no single evaluation procedure may be used as the sole criterion for the placement or planning.
Confidentiality	The results of evaluation and placement are kept confidential, though the student’s parents or guardians may have access to the records.
Personnel Development, Inservice	Training for teachers and other professional personnel, including inservice training for regular teachers, in meeting the needs of students with disabilities.

IDEA to IDEIA (Individuals with Disabilities Education Improvement Act)

·         IDEA was amended to IDEIA as signed by Pres. George W. Bush last December 2004

Some Key Changes:

Specific learning Disability Eligibility- replaced the old model of eligibility, which was Discrepancy Model, to the Response To Intervention Model

Evaluations- IDEIA reiterates the idea that evaluations are not just linked to academic performance rather explicitly recognizes that the child’s developmental needs must be assessed, including academic, social and emotional needs. Evaluators must look at all areas of functioning, not predominately academics.

Parent Refusal- if the parent refuses to consent to the provision of services, the school district may not provide special education services and may not initiate due process to force services

IEP requirements- loosened requirements for mandatory participants; short term objectives no longer required(still in question); IEP can be amended without a meeting as long as the parents and the school agree

ADA (Americans with Disabilities Act)

·         prohibits discrimination against people with disabilities in employment, transportation, public accommodation, and government activities

ADA to ADAAA (Americans with Disabilities Act Amendment Act of 2008)

·         expands the protection of the original ADA to include more individuals with less severe impairments

·         directs a broad interpretation of the definition of disability as having a physical or mental impairment that substantially limits one or more major life activities; having a record of such an impairment; or being regarded as having such an impairment.”

·         clarifies the definition of “major life activities”.

Current trends in Legislation

·         Restraint Bill H. R. 4247 (Preventing Harmful Restraint and Seclusion Act)- assist in the prevention of practices that causes physical and emotional harm to students with and without disabilities. These practices include prone restraint, aversive intervention and seclusion.

·         Amendment on the present IDEIA that IEP should contain a strategy to address the needs of the child

Relationship of Litigation to Legislation

·         Legislation requires or gives permission to provide special education, but it does not necessarily result in what legislators intended. Laws may have little or no effect on the lives of individuals with disabilities unitl courts interpret exactly what the laws require in practice.

·         Litigation is now focused on ensuring that every child receives and education appropriate for his or her individual needs.

·         Litigation may involve legal suits filed for either two reasons: (1) because special education services are not being provided for students whose parents want them, or (2) because students are being assigned to special education when they parents believe they should not be.

Major Litigation

Brown v. Board of Education of Topeka (1954)

·         set a precedent for equality in education which was extended to children with disabilities

Diana v. State Board of Education (1970)

·         ruled that students cannot be placed in special education on the basis of culturally biased tests or tests given in other than the child’s native language. This ruling resulted in requirements  to implement nondiscriminatory assessment methods, including testing students in their native language

Penn Assoc. for Retarded Citizens v. Commonwealth of Penn (1972)

·         ruled that children with mental retardation have the right to a free and appropriate public education and that parents who are dissatisfied with their children’s placement have the right to a due process under the law

Mill v. Board of Education (1972)

·         ruled that students with disabilities have the same right to a education as nondisabled students. Financial problems cannot be allowed to have a greater impact on children with disabilities than on students without disabilities.

Honig v. Doe (1988)

·         ruled that students couldn’t be removed from school if the inappropriate behavior is related to the disability. Schools could suspend a student for up to 10 days, but not more than 10 days without due process

Olmstead v. L.C. (1999)

·         case regarding discrimination of people with disabilities in institutions

Toyota Motor Manufacturing Kentucky, Inc. v. Williams (2002)

·         interpreted the meaning of the phrase “substantially impairs” as used in Americans with Disabilities Act of 1990. This case was one of the bases for the amendment of ADA to ADAA.