9780136474135

With IDEA and its regulations as the foundation, this readable book provides the most current information on special education law and regulation today. The authors' approach allows readers to go to the original legislation and to examine current legislation from a historical perspective. It also gives readers the opportunity to understand the evolving nature of legislation and how it is interpreted by case law. Topics include: Overview of Special Education Services; A New Foundation for Special Education Services; Free Appropriate Public Education; Nondiscriminatory Evaluation; Individualized Education Program (IEP); Least Restrictive Environment (LRE); Procedural Due Process; Parental Participation; Enforcement of Special Education Law; Mediation and Impartial Due Process Healing; Ethics and the Special Education Professional; Unresolved Issues.

PART I Bases for Special Education Services

1

(36)

Overview of Special Education Services

3

(16)

Deinstitutionalization and Normalization

4

(3)

Advocacy

7

(2)

Civil Rights Movement

9

(1)

The Kennedy Era

9

(1)

Litigative Base

10

(3)

Brown v. Board of Education of Topeka, Kansas (1954)

10

(1)

Hobson v. Hansen (1967)

11

(1)

PARC v. Commonwealth of Pennsylvania (1972)

12

(1)

Mills v. Board of Education of the District of Columbia (1972)

12

(1)

Diana v. State Board of Education (1970)

13

(1)

Larry P. v. Riles (1972, 1974, 1979, 1984)

13

(1)

Legislative Base

13

(1)

The Rehabilitation Act of 1973

13

(1)

Developmental Disabilities Assistance and Bill of Rights Act of 1975

14

(1)

Summary

14

(1)

References

15

(1)

Briefing: Brown v. Board of Education

16

(3)

A New Foundation for Special Education Services

19

(18)

The Federal Base for Special Education Services

21

(5)

P.L. 89-10, Elementary and Secondary Education Act of 1965

21

(1)

P.L. 91-230, Education of the Handicapped Act of 1970

21

(1)

P.L. 93-380, Education Amendments of 1974

22

(1)

P.L. 94-142, Education for All Handicapped Children Act of 1975

22

(4)

Subsequent Reauthorizations and Amendments to EAHCA

26

(2)

P.L. 99-372, Handicapped Children's Protection Act of 1986

26

(1)

P.L. 99-457, Education of the Handicapped Act Amendments of 1986

26

(1)

P.L. 101-476, Individuals with Disabilities Education Act of 1990

27

(1)

P.L. 102-119, The Individuals with Disabilities Education Act Amendments of 1991

27

(1)

P.L. 105-17, The IDEA Amendments of 1997

27

(1)

Federal Statutes Supporting IDEA

28

(2)

P.L. 93-112, Rehabilitation Act of 1973

28

(1)

P.L. 101-336, Americans with Disabilities Act of 1990

29

(1)

Summary

30

(1)

References

30

(1)

P.L. 105-17: Title and Findings

31

(6)

PART II Six Basic Principles of Special Education Legislation

37

(102)

Free Appropriate Public Education

39

(16)

Equal Protection Doctrine

40

(4)

Application of Equal Protection Principle in Education

44

(7)

Pre-EAHCA Litigation

44

(1)

Legislation Applying Equal Protection Principle

45

(3)

Accessibility of Education for All Children with Disabilities

48

(3)

Summary

51

(1)

References

51

(1)

Briefing: Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)

52

(3)

Nondiscriminatory Evaluation

55

(20)

Basis for the Principle of Nondiscriminatory Evaluation

57

(2)

Hobson v. Hansen (1967)

57

(1)

Larry P. v. Riles (1972, 1979)

58

(1)

Parents in Action on Special Education (PASE) v. Hannon (1980)

59

(1)

Legislative Basis for Nondiscriminatory Evaluation

59

(3)

The Education for All Handicapped Children Act of 1975

59

(1)

Section 504 of the Rehabilitation Act of 1973

60

(1)

The Americans with Disabilities Act of 1990

61

(1)

Protection in Evaluation Procedures (PEP)

62

(10)

Preplacement Evaluation

62

(1)

Evaluation Materials and Procedures

63

(4)

Independent Educational Evaluations

67

(1)

Reevaluation

68

(1)

Additional Evaluation Issues

69

(3)

Summary

72

(1)

References

72

(1)

Briefing: Larry P. v. Riles (1972, 1974, 1979, 1984)

73

(2)

Individualized Education Program (IEP)

75

(20)

Basis for Individualized Education Programs

76

(1)

Individualized Education Program (IEP)

77

(6)

IEP Litigation

83

(8)

Appropriateness of the IEP

84

(1)

Related Services and the IEP

85

(4)

Related Services: Other Therapies and Services

89

(1)

Extended School Year

89

(2)

Summary

91

(1)

References

91

(1)

Briefing: Burlington Sch. Comm. v. Mass. Dept. of Educ. (1985)

92

(3)

Least Restrictive Environment (LRE)

95

(18)

Genesis of Least Restrictive Environment Principle: Deinstitutionalization

96

(1)

Legislative Basis for Least Restrictive Environment

97

(3)

Continuum of Alternative Placements (CAP)

98

(2)

Judicial Interpretations of LRE Principle

100

(2)

Areas of LRE Litigation

102

(6)

Mainstreaming

102

(1)

Inclusion

102

(3)

Neighborhood School

105

(1)

Placement in a Private School

106

(1)

Parental Reimbursement

106

(1)

Religious Groups

107

(1)

Funding Limitations

107

(1)

Summary

108

(1)

References

108

(1)

Briefing: Mattie T. v. Holladay (1979)

109

(4)

Procedural Due Process

113

(16)

Amendment XIV to the United States Constitution

114

(1)

Early Due Process Litigation

114

(3)

Suspension and/or Expulsion

115

(1)

Exclusion

116

(1)

Legislation and Due Process Procedures

117

(1)

Litigation After P.L. 94-142

118

(7)

Providing Notice

119

(1)

Required Content of Notice

120

(2)

Parental Access to Records

122

(1)

Mediation

122

(1)

Impartial Due Process Hearings

123

(1)

Timeliness of Process

124

(1)

Summary

125

(1)

References

126

(1)

Briefing: Max M. v. Thompson (1984)

127

(2)

Parental Participation

129

(10)

IDEA and Parental Participation

130

(1)

Parental Participation Litigation

131

(3)

Special Situations

134

(1)

Surrogate Parents

134

(1)

Foster Parents

135

(1)

Students at the Age of Majority

135

(1)

Summary

135

(1)

References

136

(1)

Briefing: Reusch v. Fountain (1994)

136

(3)

PART III Compliance Procedures

139

(44)

Enforcement of Special Education Law

141

(20)

Pre-EHA Judicial Methods of Enforcement

142

(5)

Court Citations for Contempt

142

(1)

Court-Appointed Special Masters

142

(1)

Doctrine of Federal Abstention

143

(1)

Grounds of Mootness

144

(2)

Failure to Prosecute

146

(1)

Voluntary Dismissal

146

(1)

Post-EAHCA Compliance Techniques

147

(5)

Authorization and Appropriation of Monies

147

(1)

Exhaustion of Remedies

148

(1)

Private Right of Action

149

(1)

Attorney Fees

150

(2)

Remedies for Violations of EAHCA

152

(3)

Permanent Injunctions

152

(1)

Compensatory Education

153

(1)

Monetary Fines

154

(1)

Punitive Damages

154

(1)

Summary

155

(1)

References

156

(1)

Brifing: Ridgewood Bd. of Educ. v. N.E. (1999)

157

(4)

Mediation and Impartial Due Process Hearing

161

(22)

Mediation

162

(4)

Requirements for Mediation Procedures

162

(1)

Selection and Impartiality of Mediators

162

(1)

Parents Who Elect Not to Use Mediation

163

(1)

The Mediation Process

163

(3)

Due Process Hearing

166

(7)

Hearing Officer(s) Selection and Impartiality

167

(1)

The Hearing Process

167

(3)

Basic Order of a Due Process Hearing

170

(1)

Due Process Hearing Report

171

(1)

Due Process Hearing Decisions

172

(1)

Expedited Due Process Hearings

173

(1)

Summary

173

(1)

References

174

(1)

Due Process Hearing Decision

174

(9)

PART IV Issues

183

(26)

Ethics and the Special Education Professional

185

(8)

CEC Code of Ethics

186

(1)

The Law and Ethical Practice

187

(3)

Principle-Based Ethic

187

(1)

Virtue-Based Ethic

187

(1)

IDEA and Ethical Practice

188

(2)

Summary

190

(1)

References

190

(3)

Unresolved Issues

193

(16)

Least Restrictive Environment

194

(1)

Expansion of the Principle of Least Restrictive Environment

195

(1)

Diploma and Graduation Requirements

196

(1)

Discipline

196

(4)

Manifestation Determination Review

197

(2)

Juvenile Authority Reports

199

(1)

Conflict Resolution

200

(5)

Parents, Surrogate Parents, and Guardians

201

(1)

Tape Recordings

202

(1)

Attorney Fees

203

(1)

Mediation

203

(2)

Change of Placement

205

(1)

Confidentiality of Records

206

(2)

Conflict Between FERPA and IDEA

206

(1)

Educational Records

207

(1)

Summary

208

(1)

References

208

(1)

APPENDIX A The American Legal System

209

(7)

Governance of the United States of America

209

(1)

Sources of Law

209

(3)

Federal Level

209

(2)

State Level

211

(1)

Local Level

212

(1)

United States Court System

212

(4)

Equity Law

212

(1)

State Court System

212

(2)

Federal Court System

214

(2)

APPENDIX B Reading and Researching Case Law

216

(6)

Analysis or ``Briefing'' of Case Law

216

(1)

Case Title and Citation

216

(1)

Court Type and Level

216

(1)

Facts

216

(1)

Issues

216

(1)

Court's Holding

217

(1)

Legal Doctrine

217

(1)

Significance of the Decision

217

(1)

Understanding Legal Citations

217

(2)

Parallel or Dual Citations

218

(1)

Explanation of Prior History

218

(1)

Introduction to Legal Research

219

(3)

Primary Sources

219

(1)

Secondary Sources

219

(1)

Finding Aids

219

(1)

Using Computers for Legal Research

220

(2)

APPENDIX C Glossary of Legal Terms

222

(8)

APPENDIX D Case List

230

(9)

Index

239

What is included with this book?

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A Word to Our Readers As we were preparing this text, it became clear to us that you, our readers, might appreciate the reasoning for our choice of organization, specific cases, and so forth. This information would provide a background as to why we focused on certain aspects of the law or cited cases that you may not consider relevant. From a historical perspective the Individuals with Disabilities Education Act (IDEA) was a response, in part, to issues raised by advocacy groups and court decisions. IDEA is, in fact, rooted in the social and philosophic fabric of the nation's ideals of equality. These ideals have led the nation to review possible injustices and loss of personal rights through litigation at the state and national level. The results of this litigation are catalogued and known as "case law." This information provides a historical, and often relevant, body of knowledge that is cited as "precedent" or "stare decisis" when issues are addressed through litigation or legislation at a later date. The study of law is, in part, the study of history. Therefore, as we prepared this text we cited and discussed cases that were brought before the courts at all levels to illustrate the points being examined in each chapter. Lower court decisions have a limited effect and only officially influence the state, district, or the specific federal circuit in which they are heard (see Appendix A). But as judge Crabtree says: "What is law? I prefer to think of it as based on prior cases as applied to the facts. The law is what a court states it is at a given time." Until a case is heard at the highest tier (the Supreme Court), the decision at the lower levels (district or circuit) provides the legal mandate for that issue in that specific area of the nation. Such decisions are used by attorneys, advocates, and legislators as a convenient compilation of information concerning a particular issue. It is important to note here that any opinions that are unpublished may be used for educational purposes only. They have no influence or effect on future court decisions, and they cannot be used as supporting citations. When we discuss issues in the text, we also use other forms of supporting information to assist in clarifying our viewpoint on the topic (see Appendix B). For instance, the United States Code is cited with accompanying federal regulations whenever we discuss the specific section of IDEA that has resulted in controversy. Along with the legislation and litigation, where available, we have used Office of Special Education Programs (OSEP), Office of Special Education and Rehabilitation Services (OSERS), and letters and memos to the various State Education Agencies (SEA) to provide you with the interpretation of IDEA and its regulations concerning an issue as it has been communicated to the states. Although these letters and memos are not considered law, they are given deference by the various courts when preparing an opinion. Of course, the selection of cases was a personal decision by the authors. We selected pertinent cases that we thought you, as readers, would find interesting as well as informative. Cases were also chosen that have been recognized as historical underpinnings for IDEA. In the chapter on future issues, we selected cases that we saw as harbingers of issues that might become more controversial. Although our philosophical preferences are exhibited throughout the text, we guarded against reinterpretation of the legal opinions. The briefings at the end of the chapters were provided to acquaint our readers with the methods used to examine disputed points of law. We urge you to review additional cases using that methodology, thereby obtaining first-hand knowledge of the reasoning of the court. As you are reading this text, we hope you will remember that IDEA is the result of a reaffirmation of the beliefs of our society thatallcitizens should be provided an edu

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Special Education Law

Special Education Law

0136474136

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