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Chapter Ten

School Law and Children with Disabilities

In the 1960s and 1970s, concern for the education of handicapped children began to take hold in the American culture and conscience. The watershed event was the passage by Congress of the 1975 landmark legislation titled the Education for All Handicapped Children Act (EHA). This act has been peri- odically amended and has evolved into today’s law, the Individuals with Disabilities Improvement Education Act of 2004 (IDEA). The combination of IDEA and other congressional acts dealing with disabilities, such as the Rehabilitation Act of 1973, Section 504, and the American Disabilities Act, forms the legal framework for the protection of students with disabilities.

Needless to say, the complexity of handicapping conditions, and the inter- relationship of handicapped and nonhandicapped education, has produced a voluminous set of case law that has given definition to the intent of IDEA and its companion legislation.

SOURCES OF DISABLED INDIVIDUALS’ PROTECTION

If a person with a disability is of school age (age 3 through 21), specialized instructional services are provided under IDEA.

504 versus IDEA (2004)

Public schools provide services to handicapped students under either Section 504 of the Civil Rights Act or IDEA-R. The differences are as follows:

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-09-06 14:00:20.

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Table 10.1. History of Federal Special Education Legislation Authorizing Sup- ports and Services for Children with Special Needs

Year Legislation Educational outcome 1958 National Defense Education Act Provided funds for training teachers to

(PL 85-864) work with children with intellectual disabilities

1961 Special Education Act (PL 87-276) Provided funds for training professionals to train teachers who teach children who are deaf

1963 Mental Retardation Facilities and Expanded the support provided in the Community Mental Health Centers National Defense Act (PL 85-926) to Construction Act of 1963 (PL 88- train teachers who teach children with 164) other disabilities

1965 Elementary and Secondary Provided money to states and districts Education Act of 1965 (PL 89-10) to develop programs for children with

disabilities from low-income families

1973 Section 504 of the Rehabilitation Ensured equal opportunities for children Act of 1973 (PL 93-112) and youth with disabilities in schools

receiving federal funding

1975 Education for All Handicapped Mandated free appropriate public Children Act of 1975 (PL 94-142) education for all children with

disabilities ages 6–21 Protected the rights of children with disabilities and their parents in educational decision making Required an individualized education program (IEP) for each child with a disability Stated that students with disabilities must receive educational services in the least restrictive environment

1986 Education of the Handicapped Act Extended the rights of the Education for Amendments of 1986 (PL 99-457) All Handicapped Children Act of 1975

(PL 94-142) to children with disabilities ages 3–5 Included incentive grants to states to develop programming for infants and toddlers (birth to 2 years) and their families

1988 Jacob K. Javits Gifted Talented Provided federal funding to support Students Education Act of 1988 research, teacher training, and program (PL 100-407) development for the education of gifted

and talented students

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1988 Technology-Related Assistance Created statewide programs of for Individuals with Disabilities Act technology assistance for people of all of 1988 (PL 100-407) ages with disabilities

1990 Americans with Disabilities Act Provided civil rights protection to (ADA) of 1990 (PL 101-336) individuals with disabilities against

discrimination in private employment, public services, public accommodations, transportation, and telecommunications

1990 Individuals with Disabilities Added autism and traumatic brain injury Education Act (IDEA) of 1990 (PL as new categories of disability for 101-476) (Reauthorization of the service Education for All Handicapped Required all IEPs to include a Children Act of 1975 [PL 94-142]) statement of transition services no later

than age 16 Expanded the definition of “related services” to include rehabilitation counseling

1997 Individuals with Disabilities Included many new provisions—for Education Act Amendments example, a general education teacher (IDEA) of 1997 (PL 105-17) must be a member of each student’s

IEP team; students with disabilities must have access to the general education curriculum; the IEP must address positive behavior support plans where appropriate; students with disabilities must be included in state or districtwide testing programs; and if a school seeks to discipline a student with disabilities resulting in a change of placement, suspension, or expulsion for more than 10 days, a manifestation determination hearing by the IEP team must find that the student’s misconduct was not related to his or her disability

2001 No Child Left Behind Act of 2001 Mandated that all children be proficient (PL 107-110) (reauthorization of in all subject matters by 2014 the Elementary and Secondary Mandated that school districts make Education Act of 1965 [PL 89-10]) adequate yearly progress (AYP) toward

the 100 percent goal; ensure that all children are taught by “highly qualified” teachers; and use curriculum that has been validated by the rigors of scientific research (schools that do not make AYP are provided assistance and are subject to corrective action and potentially restructuring)

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2004 Individuals with Disabilities Reauthorized all main components of Education Improvement Act IDEA 1997 but extended the IEP to (IDEA) of 2004 (PL 108-446) include benchmarks and objectives for

students who take alternative assessments Added response to instruction for identification of students with learning disabilities Defined “highly qualified special education teachers” Mandated that under special circumstances (e.g., weapons in schools) students may be removed for up to 45 days even if the behavior was a manifestation of their disability

504: antidiscrimination; managed by regular education with no money source; no mandate for services; meant to “level the playing field” through the use of accommodations.

IDEA: mandated services; disability must adversely affect performance to such a degree that specialized instruction is needed; money is provided.

Rehabilitation Act, Section 504

Section 504 of the Rehabilitation Act is monitored by the Office of Civil Rights. Schools must provide special accommodations to persons who have mental or physical impairments that substantially limit one or more of the person’s major life activities (caring for one’s self, performing manual tasks, walking, seeing, hearing, breathing, speaking, learning, and working). For a more thorough discussion of the disorders covered by 504, please refer to the Diagnostic and Statistical Manual for Mental Disorders.

IDEA (2004)

IDEA was initially written into effect in 1978 as Public Law 94-142. It was written in part as a response to Section 504 so that schools could respond to the challenge of educating children with disabilities. The act is reauthorized on a regular cycle. The current regulations went into effect in 2004, included all the updated mandates of No Child Left Behind (2001), and will be re- viewed on a regular basis by congress. This historic act

• defines free and appropriate public education (FAPE) as special education and related services (see the Tatro case) that are provided at public ex- pense, under public supervision and direction, and free to the family

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• meets state rules for special education adopted by the state board of educa- tion

• includes preschool, elementary, and secondary education • is provided in conformity with an individualized education program (IEP) • provides a free and appropriate education to all children with special needs

three through twenty-one years of age unless the child has completed the twelfth grade and has been issued a diploma

The act also defines “related services” as services that “assist a child with a disability to benefit from special education” [section 300.24(a)], such as the following:

• speech/language therapy • auditory services • occupational and physical therapy • psychological services • interpreter services • school health services/medical services • counseling services • aide services • transportation • social work services • mobility orientation for the blind • parent counseling and training

Through the reauthorization process, the act has redefined the thirteen dis- ability conditions that qualify a child for services under IDEA. Currently, these qualifying conditions are

• autism • cognitive disability or instructional disability • deafness and blindness • emotional disturbance (previously known as severe behavioral handi-

capped) • hearing impairment • multiple disabilities • orthopedic impairment • other health impairment, such as having limited strength or limited alert-

ness • specific learning disability • speech or language impairment • traumatic brain injury • visual impairment

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The provisions of IDEA provide that all students with special needs who qualify for services must be placed in what is defined as “the least restrictive environment.” The least restrictive environment could be any of the follow- ing:

• a regular classroom • a regular classroom with embedded services • a regular classroom with pull-out services • a learning center located in a public school building; a separate school

within the school district or a separate facility such as a county board of developmental disability (applicable to Ohio and Missouri only); a school for the blind or deaf; or an institution operated by the state department of mental health or department of youth services

• a hospital/institution • a home • another appropriate environment

In most states, the following philosophical position with regard to least re- strictive environment is being pursued.

It should be emphasized that once a child has been identified as being eligible for special educational services, the connection between special edu- cation and related services and the child’s opportunity to experience and benefit from a general education curriculum should be strengthened. The majority of children identified as eligible for special education–related ser- vices are capable of participating in a general education curriculum to vary- ing degrees with some accommodations and modifications. This provision is intended to ensure that children’s special education and related services are in addition to and are affected by the general education curriculum, not separate from it.

Since the parents of students with special needs must agree to the place- ment of the child in the least restrictive environment, disagreements between the school and the parents sometimes occur. When this happens, procedural safeguards to resolve the conflict occur and take the following form (which varies slightly from state to state).

1. A case conference 2. Administrative review 3. A prehearing conference (mediation) 4. An impartial due process hearing 5. A state-level review 6. An appeal to the courts

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Individual Education Plan (IEP) Development

The IEP is designed to meet the unique educational needs of the child. The IEP must include related services necessary for the child to benefit from a special education program. The IEP must be reviewed and revised at least yearly.

Recent Changes to IDEA

In recent years some major changes have been reflected in IDEA. The most significant include

• disciplinary procedures and manifestation determination • reevaluation process improvements • parent role strengthening • least-restrictive-environment language strengthening • improvements in language about children in private schools • addition of components to the IEP • an insistence that regular education teachers participate in the IEP devel-

opment • a transferral of rights, age of majority • a focus on improving results through the regular classroom

The major components of IDEA are

• child identification • procedural safeguards • multifactored evaluations • individualized education programs (IEPs) • least restrictive environments • confidentiality of data • due process • testing programs

Manifestation

The issue of suspension or expulsion of students with special needs has been the subject of controversy since the inception of special education. As a result, the process of manifestation was passed by Congress as a part of the reauthorization of IDEA. The formal determination of suspension or expul- sion must follow these steps:

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1. For disciplinary action beyond ten days, the parents must be notified of the action, and procedural safeguards must be in place no later than the day of the infraction.

2. Immediately, but no later than ten days after the action, a manifest determination review must be held and a formal determination estab- lished.

3. A review must be conducted. The team must first consider, in terms of behavior subject to disciplinary action, all relevant information (i.e., evaluation results, observations, IEP/placement) and then ask if “in relationship to the behavior subject to disciplinary action the child’s IEP and placement were appropriate and the special education ser- vices, supplementary aids and services, and behavior intervention strategies were provided consistent with IEP and placement.” If the answer is no, then FAPE consistent with IEP and placement must be provided, and suspension or expulsion is not allowed. If the answer is yes, then the team must ask, “Did the child’s disability impair the ability of the child to (1) understand the impact and consequences of the behavior or (2) control the behavior subject to disciplinary ac- tion?” If the answer is yes to either, suspension or expulsion is not allowed. If the answer is no to both, suspension or expulsion is permit- ted.

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CASE SUMMARIES

Timothy W. v. Rochester, New Hampshire, School District U.S. Court of Appeals, First Circuit 1989, 875 P.2d 954

Topic: The education of children with severe handicaps. Issue: Can a school district deny education to a handicapped child based

on that child’s ability to benefit from educational services? Facts: Timothy W. was born two months premature on December 8,

1975. He suffered numerous complications at birth and, as a result, Timothy is multiple-handicapped and profoundly mentally retarded. Timothy suffers from complex developmental disabilities, spastic quadriplegia, cerebral pal- sy, seizure disorders, and cortical blindness. He did not receive any educa- tional services when he reached school age.

March 7, 1980: Rochester Schools decided Timothy was not educational- ly handicapped. Since his handicap was so severe, he was not capable of benefiting from an education and therefore was not entitled to one.

January 17, 1984: In response to a letter from Timothy’s lawyer, the district placement team recommended that he be placed at the Child Devel- opment Center so that he could be provided with special education services. The school board refused to authorize this, stating it needed more informa- tion. They requested a CAT scan, and Timothy’s mother refused.

November 17, 1984: Timothy filed a complaint in U.S. District Court alleging his rights were violated under the Education for All Handicapped Children Act (EHA), New Hampshire state law, Sections 504, and the equal protection/due process clauses of the Constitution. The complaint sought preliminary and permanent injunctions directing the school district to provide Timothy with special education and $175.00 in damages.

July 1988: Opinion of the first district court: Timothy is not capable of benefiting from special education; as a result, the school district is not obli- gated to provide special education under the EHA or New Hampshire law.

May 24, 1989: The U.S. Court of Appeals, First District heard the case. Findings: Circuit Judges Bowies, Aldrich, and Bryer reversed the ruling

of the district court. They found for the plaintiff and ordered the case to return to district court until an IEP could be put into place. They ordered immediate interim services and damages to be assessed against the school district.

Rationale: Language of the act (EHA):

• The statute is permeated with the words “all handicapped children.” • The act gives priority to the most severely handicapped. • There is no language requiring a prerequisite that the child demonstrate

that he or she will “benefit” from an educational program.

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• It is the state’s responsibility to design special education to meet the unique needs of handicapped children.

• Language makes clear “zero-reject” policy.

Legislative History

• Congress intended the act to provide a public education for all handi- capped children.

• The act was a response to testimony and evidence that handicapped chil- dren were being systemically excluded from public school and receiving inadequate education.

• The Office of Education provided a report documenting eight million handicapped children, four million of whom were not receiving appropri- ate services.

• Subsequent amendments to the act: In numerous reauthorizations, it has been amended seven times, repeatedly affirming the original intent and in fact expanding provisions. The act never required proof of benefit for eligibility.

• Remarks from Senate hearings: “What we are after in this legislation is to rewrite one of the saddest chapters in American education, a chapter in which we were alert while young children were shut away and condemned to a life without hope. This legislation offers them hope, hope that whatev- er their handicap, they will be given the chance to develop their abilities as individuals and to reach out with their peers for their own personal goals and dreams” (Senator Mondale).

Case Law: Two landmark cases, Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania (1972) and Mills v. Board of Education of District of Columbia (1972), established that exclusion from public school of any handicapped child was unconstitutional.

Board of Education of the Hendrick Hudson Central School District v. Amy Rowley, by her parents, Clifford and Nancy Rowley

102 S.Ct.3034; 458 U.S. 176; 73 L. Ed.2d 690; No. 801002 Argued March 23, 1982; Decided June 28, 1982

Topic: Parents of a deaf child request to have their daughter receive services from a qualified sign-language interpreter for all of her academic classes. The parents argue that their daughter is being denied the right to free appropriate public education (FAPE).

Issue: Is Amy Rowley’s FAPE being denied?

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Facts

1. The EHA requires that students receive a “free appropriate public education” whether the student is “mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired or as having specific learning disabilities.”

2. The school district prepared for Amy’s success by providing her with a hearing aid that amplified the teacher’s words; several teachers and administrators took sign-language classes; and the principal had a tele- type machine in his office to communicate with Amy’s parents, who were deaf as well. There was a sign-language interpreter placed for a trial period in the classroom; however, the findings were that Amy was an excellent lip reader and was able to be successful with her academics and socially without this service. This service was not writ- ten in the IEP for Amy’s kindergarten or first-grade year. Mr. and Mrs. Rowley, on behalf of their daughter, demanded a hearing.

3. The district court found for the parents and said that though Amy “is performing better than the average student . . . she understands much less of what goes on in class than if she were not deaf thus she is not learning as much, or performing as well.” The court found that Amy was not receiving her required FAPE.

4. The court and all involved had many questions as to what the EHA and its FAPE requirements really meant for a handicapped student and the school he or she attended.

The Supreme Court granted a writ of certiorari to review the lower court’s analysis of the act and identified two questions to consider:

• What is meant by the act’s requirement of a “free appropriate public education”?

• What is the role of the state and federal courts in exercising the review granted by the act?

Findings of the Supreme Court: The Supreme Court found for the school district that Amy’s educational setting and services were being met by the requirements of FAPE. The Supreme Court said that the act defines the term “free appropriate public education” as “special education and related services which have been provided at public expense, under public supervision and direction, and without charge, meet state standards, include appropriate grade levels from preschool to secondary education, and provide in conformity with the individualized education program required.”

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The Court also noted that FAPE should “consist of providing the student with instruction to meet his or her unique needs that are necessary for the student to ‘benefit’ from the instruction.” FAPE provides the student with a reasonable opportunity to learn and does not mean that the student must reach maximum potential. The act opens the door for the handicapped stu- dent but does not predict a level of performance.

The Court held that the state, according to the act, is required to provide educational services to those children who are not receiving education at all and to those children receiving “inadequate education.”

The Court found that there was no need for a sign-language interpreter in Amy’s classroom.

Rationale: Justice Rehnquist delivered the majority opinion by first look- ing at the history of special education.

At the time of the act’s ratification, there were approximately eight mil- lion handicapped children in the United States. Of those eight million, one million were “excluded entirely from the public school system” and more than half were receiving an inappropriate education. The act was designed to require states to have procedures to meet the “unique needs” of the handi- capped students. Rehnquist continued the opinion by quoting definitions to show that the intent of the act itself was to give handicapped students the opportunity to learn in a public school setting.

There has been an increased awareness of the educational needs of handi- capped children because of this act; however, the Rowley family did not think the act was specific enough. This came about because the act specified that special education needs need to be supported by related services. Rehn- quist defined “related services” as “transportation, and such development, corrective, and other supportive services as may be required to assist a handi- capped child to benefit from special education.” Although the definitions are vague and conveyed, the intent of the act was to provide “free appropriate public education” and does not contain specific requirements. The history and interpretation of the act was at the focal point of this case.

Concurring: Opinion written and delivered by Justice Blackmun, along with Justices Powell, Stevens, O’Connor, and Burger, discussing the history of Congressional intent vis-à-vis the act. Congress intended to take a “more active role under its responsibility for equal protection,” and “it seems plain to me that Congress in enacting this statute, intended to do more than merely set out politically self-serving but essentially meaningless language about what the handicapped children deserve at the hands of the state.” Blackmun questioned Amy’s program and whether it offered her the opportunity to understand and participate in the classroom. Blackmun suggested the “courts focused too narrowly on the presence or absence of a particular service—a sign-language interpreter—rather than on the total package of services fur- nished to Amy by the School Board.”

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Dissenting: Justice White wrote this opinion, with Justices Brennan and Marshall joining. White stated that the language of the act contradicts the history. The dissent emphasized that “the Act does guarantee that handi- capped children are provided equal educational opportunity.” However, at times the purpose of the act was described as tailoring each handicapped child’s educational plan to enable the child “to achieve his or her maximum potential.”

The dissent also noted that it was unsuitable that the Court found that because Amy was “receiving specialized instruction and she was benefiting, that she was receiving meaningful and therefore appropriate education” with- out the sign-language interpreter. Justice White also established that “without a sign-language interpreter, Amy comprehended less than half of what is said in the classroom; therefore she was not given the ‘equal opportunity to learn.’”

Honig v. Doe

U.S. Supreme Court 484 U.S. 305 (1988), No. 86-728 Argued November 9, 1987; Decided January 20, 1988

[Honig, California Superintendent of Public Instruction v. Doe et al. Certio- rari to the United States Court of Appeals for the Ninth Circuit]

Problem: The EHA requires states to ensure FAPE for all disabled chil- dren within their jurisdictions. This act provides for parental participation in decisions regarding the education of their disabled child as well as a process for administrative and judicial review. Among these safeguards is a so-called stay-put provision, which directs that a disabled child “shall remain in [his or her] then current educational placement” pending completion of any review proceedings unless the parents and state or local educational agencies agree otherwise (20 U.S.C. 1415[e][3]).

This asks whether state or local school authorities may nevertheless uni- laterally exclude disabled children from the classroom for dangerous or dis- ruptive conduct growing out of their disabilities. In addition, the Court was called upon to decide whether a district court may, in the exercise of its equitable powers, order a state to provide educational services directly to a disabled child when the local agency fails to do so (484 U.S. 305, 309).

Background: This case concerns two emotionally disturbed students in the San Francisco School District in 1980. Student John Doe was an emo- tionally disturbed student in a special school. He was emotionally abused as a child and he had become a target for other students due to physical, speech, and grooming abnormalities. He was seventeen and was attending a develop- mental center for disabled students when he assaulted and choked another student and kicked out a window in response to a verbal taunt. Even though

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this type of explosive behavior was clearly targeted in his IEP, the principal suspended him for five days and recommended expulsion.

Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable “to control verbal or physical outburst[s]” and exhibited a “severe disturbance in relationships with peers and adults.” Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above- average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Of particular concern was Smith’s propensity for verbal hostility; one evaluator noted that the child reacted to stress by “attempt[ing] to cover his feelings of low self-worth through aggressive behavioral . . . primarily verbal provocations.”

Based on these evaluations, the San Francisco School District placed Smith in a learning center for emotionally disturbed children. His grandpar- ents, however, believed that his needs would be better served in the public school setting and, in September 1979, the school district acceded to their requests and enrolled him at A. P. Giannini Middle School. His February 1980 IEP recommended placement in a learning disability group, stressing the need for close supervision and a highly structured environment. Like earlier evaluations, the February 1980 IEP noted that Smith was easily dis- tracted, impulsive, and anxious; it therefore proposed a half-day schedule and suggested that the placement be undertaken on a trial basis.

At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School offi- cials met twice with his grandparents in October 1980 to discuss returning him to a half-day program. Although the grandparents agreed to the reduc- tion, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior—which included stealing, extorting money from fellow students, and making sexual comments to fe- male classmates—they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from the school district. As it did in John Doe’s case, the committee scheduled a hearing and extended the suspension indefi- nitely, pending a final disposition in the matter.

On November 28, Smith’s counsel protested these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P. Giannini or to provide home tutoring. Smith’s grandparents chose the latter option, and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.

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Next Step: On the day the suspension was to end, the SPC notified Doe’s mother that it was proposing to exclude her child permanently from the school district and was therefore extending his suspension until such time as the expulsion proceedings were completed. The committee further advised her that she was entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.

After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials and the state superintendent of public instruction. Alleging that the suspension and proposed expulsion vio- lated the EHA, he sought a temporary restraining order canceling the hearing and requiring school officials to convene an IEP meeting. The district judge granted the requested injunctive relief and further ordered defendants to pro- vide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then-cur- rent educational placement at Louise Lombard School pending completion of the IEP review process. Doe reentered school on December 15, five and one- half weeks, or twenty-four school days, after his initial suspension. In Jack Smith’s case, it was recommended that he attend a half-day program at a school or receive home tutoring. His grandparents decided that they would prefer home tutoring, but when they heard about John Doe’s case, they joined the suit.

The district court said that removing the students resulted in a change of placement since the children weren’t receiving the services identified in their IEPs. In the original EHA, there was a section called the “stay put” provision. This basically stated that while parents and districts are trying to work out problems with a placement, the child stays in the placement that has been identified in the existing IEP. In a series of decisions, the district judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived them of their congressional- ly mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The district judge therefore permanently enjoined the school dis- trict from taking any disciplinary action other than a two- or five-day suspen- sion against any disabled child for disability-related misconduct and from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the state from authorizing unilateral placement changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the state to provide services directly to disabled children when, in any individual case, the state determined that the local educational agency was unable or unwilling to do so.

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Findings of the U.S. Supreme Court: Justice Brennan delivered the opin- ion of the Court as to holdings numbers 1 and 2, in which Chief Justice Rehnquist and Justices White, Marshall, Blackmun, and Stevens joined. Chief Justice Rehnquist filed a concurring opinion, post. Justice Scalia filed a dissenting opinion, in which Justice O’Connor joined, post, as follows.

As a condition of federal financial assistance, the EHA requires states to ensure a “free appropriate public education” for all disabled children within their jurisdictions. In aid of this goal, the act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called “stay-put” provision, which directs that a disabled child “shall remain in [his or her] then current educa- tional placement” pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree (20 U.S.C. 1415[e][30]). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so.

The Court was sensitive to the fact that the original EHA law was de- signed specifically to make sure that disabled students were not excluded from educational services. Doe’s portion was thrown out because there was no likelihood that the situation would happen again. “In the present case [Smith], we have jurisdiction if there is a reasonable likelihood that respon- dents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. We believe that, at least with respect to respondent Smith, such a possibility does in fact exist and that the case therefore remains justiciable.”

The Supreme Court rejected the school’s argument that they couldn’t educate him because he was dangerous to other children, determining that schools could not unilaterally exclude students with disabilities from school. “It is respondent Smith’s very inability to conform his conduct to socially accepted behavior that renders him handicapped.” The schools could tempo- rarily suspend the child for up to ten days. Within that time, if things had not cooled down or changes been agreed on by the parents, the school could seek court assistance. That court review has become known as a Honig injunc- tion—a process in which the school must prove that maintaining the child in his or her current placement would be substantially likely to result in injury to the child or others. From these holdings, the ten-day cut off for suspen- sions and the availability of emergency injunctive review, emerged the cur- rent regulatory scheme. The Court agreed with the district court and the court

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of appeals. One comment about the court of appeals was that they allowed more than ten days to work things out without calling it a change in place- ment. The Supreme Court said that it disagreed on this issue.

Oberti v. Board of Education of the Borough of Clementon School District

995 F.2d 1204 (3rd Cir. 1993) Argued March 9, 1993; Decided May 28, 1993

[Rafael Oberti, by His Parents and Friends v. Board of Education of the Borough of Clementon School District]

Topic: Mainstreaming requirement of school districts for children with special education needs.

Issue: Whether schools should fully explore ways to teach students with disabilities in regular classrooms before segregating them in special educa- tion settings.

Facts

• Raphael was an eight-year-old child with Down syndrome, a genetic de- fect that impairs intellectual functioning and ability to communicate. The IEP for Raphael during the 1989–1990 school year assigned all eighteen academic goals to the afternoon special education class. The morning kindergarten class goals were to only observe, model, and socialize with nondisabled children.

• While some academic and social progress was made, several behavioral problems arose in the morning kindergarten classroom, including toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting, and spitting on other children. Raphael also struck the teacher and the teacher’s aide.

• The IEP made no plans to address behavior issues, nor did it provide special education consultation or communication between the classroom teacher and the special education teacher. A second aide was provided, but little success was obtained. Raphael did not experience similar behavior problems in the afternoon special education class.

• At the end of the year, the child study team decided to place Raphael in a segregated special education classroom for “educable mentally retarded.” Since this was not available in the Clementon School District, Raphael would have to travel to another district.

• The Obertis objected to the segregated placement and requested that Ra- phael be placed in a regular kindergarten class in Clementon Elementary School. The school district refused, and the Obertis asked for a due pro- cess hearing. Through mediation, the parents agreed to place Raphael for

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1990–1991 in a special education class for “multiple handicaps” at Win- slow Township School District (a forty-five-minute bus ride). As part of the agreement, Winslow promised to explore mainstreaming possibilities and consider a future placement in a regular classroom at Clementon.

• By January, however, there was no evidence of any plans to consider mainstreaming, and Raphael had no contact with nondisabled students at Winslow.

• In January 1991, the Obertis brought another due process complaint under IDEA that Raphael be placed in a regular classroom in his home school, Clementon. The New Jersey Office of Administrative Law decided that the segregated special education class at Winslow was the “least restric- tive environment” for Raphael, based on testimony of the kindergarten teacher and other witnesses of his disruptive behavior. Alternate expert witnesses about the education of children with disabilities brought by the Oberti side were discounted.

• As a result of the findings, the Obertis filed civil action in the U.S. District Court for the District of New Jersey under IDEA and unlawful discrimina- tion under 504 of the Rehabilitation Act of 1973, 29 U.S.C 794.

Findings of the Third U.S. District Court: The district court decided that the school district had failed to establish by a preponderance of evidence that Raphael could not at this time be educated in a regular classroom with supplementary aids and services. The court decided that the school district had violated IDEA. The court also found that the school district was discrim- inating against Raphael in violation of Section 504 of the Rehabilitation Act. The court ordered the school district “to develop an inclusive plan for Ra- phael Oberti for the 1992–1993 school year consistent with the requirements of IDEA and Section 504 of the Rehabilitation Act.”

Rationale

• The court found that many of the techniques an expert said were needed could be implemented in a regular classroom.

• The school district did not make reasonable efforts to include Raphael in a regular classroom.

• The behavior problems in 1989–1990 were largely a result of the school district’s failure to provide supplementary aides and services.

• The court discounted the decisions of the New Jersey Office of Adminis- trative Law because “they were largely and improperly based upon Ra- phael’s behavior problems in the developmental kindergarten as well as the school district.”

• The court used the Roncker test to determine the case: “In a case where the segregated facility is considered superior (academically) the court should

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determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the place- ment in the segregated school would be inappropriate under the Act.”

• The Daniel R.R. test would be better because it gives specific direction to the court in determining whether the school district has met the require- ments of IDEA: “whether the school district has made reasonable efforts to accommodate the child in regular classroom; the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to benefits provided in special education class; and the possible negative effects of the inclusion of the child on the education of the other students in the class” (see Sacramento v. Holland).

Mainstreaming Test

The first part is as follows:

1. Whether the school district has made efforts to accommodate the child in regular classroom.

2. The educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the bene- fits provided in a special education class.

3. The possible negative effects of the inclusion of the child on the edu- cation of the other students in the class.

The second part of the mainstreaming test is whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

The school must take intermediate steps wherever appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and from school year to school year as the child develops.

Martinez v. School Board of Hillsborough County, Florida

No. 883667, U.S. Court of Appeals for the 11th Circuit Argued July 13 and 14, 1988; Reargued December 1, 1988; Decided

April 26, 1989

Prior History: Appeal from the U.S. District Court for the Middle District of Florida.

Topic: Appropriate placement of a special education student.

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Issue: The case involves a mentally retarded child infected with human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), wanting to enroll in the school system of Hillsborough County, Florida.

Facts: The child involved was

• a seven-year-old female student with an IQ of 41 • HIV positive • not toilet trained • suffering from thrush, a disease that can produce blood in the saliva • accustomed to thumb and finger sucking, which got saliva on her fingers • prone to skin lesions (the child’s parent promised to keep her at home if

lesions appeared)

In the summer of 1986, Mrs. Martinez attempted to enroll her child in the special education program for the trainable mentally handicapped (THM) in the Hillsborough County School System. The Hillsborough County School System found that home instruction was the appropriate educational place- ment for the student.

Mrs. Martinez requested an administrative hearing, based on the Educa- tion of the Handicapped Act, 84 Stat. 175 (1970) which was codified as amended by the Education for All Handicapped Children Act, 89 Stet. 775 (1975). On August 25, 1987, a hearing officer of the Florida Division of Administrative Hearings upheld the school board’s decision.

Mrs. Martinez appealed, saying that the hearing officer and board’s deci- sion violated her daughter’s rights under the EHA, Section 504 of the Reha- bilitation Act of 1973, and the equal protection clause of the Fourteenth Amendment.

The case went to trial without a jury in 1988. Mrs. Martinez gave her suggestion as to what reasonable accommodations could be made that would reduce the risk of transmission by keeping her daughter a safe distance from the other students. The following is a list of suggestions made by Mrs. Martinez:

• assignment of a full-time aide • placement of her daughter with nonambulatory trainable mentally handi-

capped (TMH) students • use of disposable diapers • use of a separate potty chair for toilet training • limiting the number of students in the room • using gloves, disinfectants, and other precautions in handling and dispos-

ing of waste

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The school board still contended that home instruction was the least restric- tive environment because some mentally handicapped children did not have control over their bodily functions, and there was a risk of transmission of the AIDS virus to other children. There was also a chance that the other children could spread communicable diseases to Eliana.

The court listened to expert testimony on the risk of transmission. There was a “remote theoretical possibility” of transmission of the AIDS virus through tears, saliva, and urine. The experts believed the most appropriate educational placement for Eliana was as follows:

• Eliana could be taught in a special room with a large glass window and sound system so Eliana could see and hear other students.

• There would be a full-time aide who would remain with Eliana and at- tempt to toilet train her and teach her not to put her fingers in her mouth.

• Other children could enter the special room only if a waiver was obtained from the child’s parents absolving the school board of any liability.

• Eliana could be taught in the main classroom when she became toilet trained and didn’t suck her fingers.

• Once Eliana was potty trained and did not suck her fingers, she could enter the classroom. The full-time aide would ensure appropriate distance was maintained once Eliana entered the classroom full time, and the school nurse would be available for consultations throughout the day.

Mrs. Martinez appealed the trial court’s decision. Opinion of the Court, Judge Vance: “There are two federal statutes that

overlap in this case. The Education of the Handicapped Act ‘EHA’ and section 504 of the Rehabilitation Act of 1973. With these statutes in mind the trial judge must first determine the most appropriate educational placement for the handicapped child under ERA. Next the court must determine wheth- er the child is otherwise qualified within the meaning of section 504 to be educated in the classroom despite the communicable disease. If not, the court must consider what would make the child ‘otherwise qualified’ to be educat- ed in the least restrictive environment. Also, the court must consider the financial burden the accommodations would impose on the institution in making the least restrictive environment for the student.

“If Eliana was not infected with AIDS, under the EHA, she would be entitled to attend the regular TMH Classroom. Now you must look at the 504 section to see if it is unlawful to exclude Eliana because of AIDS. The trial court found that there was a ‘remote theoretical possibility’ of transmission with respect to tears, saliva, and urine. This does not rise to the ‘significant’ risk level that is required for Eliana to be excluded from the regular TMH classroom. The Middle District Court of Florida made no decisions with respect to the overall risk of transmission from all bodily substances, includ-

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ing blood in the saliva, to which other children might be exposed in the TMH classroom.”

With a decision of 3–0, the Eleventh Circuit Court vacated and remanded the case back to the district court to determine the overall risk of transmission and whether Eliana was otherwise qualified to attend classes in the TMH classroom.

Memorandum Opinion: [by Elizabeth A. Kovachevich] “Based on expert medical judgment and the state of medical knowledge there is a ‘remote theoretical possibility’ of transmission of HIV through bodily secretions such as urine and saliva. Because of this the court does not feel the appropriate placement for Eliana is the totally unrestricted placement at school, nor is the home the proper placement for Eliana. The Court finds that a restricted placement into the TMH classroom is the appropriate least restrictive envi- ronment for Eliana at this time.

“Where other students are concerned, in a public school setting, the asso- ciation is both involuntary and compulsory; eligible students do not have a choice. Therefore, the obligation is clear to create an environment that is reasonably risk-free for all who must associate with one another.”

Based on the facts and conclusions of law, the court ordered that Eliana be placed in the TMH classroom under the following conditions, limitations, and restrictions to be strictly adhered to by all parties, and subject to review by the court:

1. Eliana is now potty trained and no longer sucks on her fingers so she can be removed from the constructed room and placed in the general TMH classroom.

2. A full-time aide must be provided to help maintain a reasonable separ- ation of other children and Eliana, and to assist in the control of accidental spillage of bodily fluids.

3. Eliana is restricted from the TMH classroom when she has open sores or lesions on her body or mouth.

4. If there is a question of advisability of the child being in the integrated classroom, the school nurse would be consulted.

Mrs. Martinez did not feel that the full-time aide was needed, but agreed with the court’s decision. Mrs. Martinez also requested that the Hillsborough County School Board provide educational programs to the school parents and student population educating them in the realities of AIDS.

Some Additional Notes Regarding the Rights of Students with AIDS: In July 1991, Section 504 of the Rehabilitation Act of 1973 was amended with respect to elementary and secondary school policies involving the placement of children with AIDS. The revision stated in part that AIDS is caused by HIV, which alters a person’s immune system and prevents them from fight-

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ing off other infectious agents. AIDS is spread through sexual contact and the sharing of contaminated needles and syringes among users of illegal intrave- nous drugs. Children contract HIV through their infected mothers during pregnancy, at birth, or after birth. In a small number of cases, the virus is spread through blood products (clotting factors) and blood transfusions.

Children with AIDS are qualified handicapped persons as defined by Section 504; therefore, if a child is handicapped by AIDS, and is of school age, he or she is considered a qualified handicapped person.

The surgeon general, Centers for Disease Control, and other health au- thorities have reinforced their position, stating that “there is no significant risk of contracting AIDS in the classroom.”

The Family Educational Rights and Privacy Act protects against unwar- ranted disclosure of school records. If school districts report any cases of AIDS to public health authorities, school districts should convey such infor- mation in a manner that respects the privacy of the individual and the confi- dential nature of the information in the same way that information about other diseases is treated.

RECENT CASES

• Virginia Office of Protection & Advocacy v. Stewart (2011): The Supreme Court held that the Virginia Office for Protection & Advocacy (VOPA) can sue the state and pursue other legal remedies necessary to fulfill their duty to advocate for people with disabilities.

• Forest Grove School District v. T.A. (2009): In a 6–3 decision, the Court held that IDEA allows reimbursement for private special education ser- vices, even when the child did not previously receive special education services from the public school.

• Board of Education of the City of New York v. Tom F. (2007): The ques- tion before the Court was whether parents of a child who has never re- ceived special education from the public school district can obtain reim- bursement for a unilateral private placement. The U.S. Supreme Court issued a split decision (4–4) in the case. Justice Kennedy recused himself. The favorable decision stands for families who live in the Second Circuit: Connecticut, New York, and Vermont.

• Winkelman v. Parma City School District (No. 05-983) (2007): The Su- preme Court ruled that parents may represent their children’s interests in special education cases and are not required to hire a lawyer before going to court. The Court held that parents have legal rights under the IDEA and can pursue IDEA claims on their own behalf, although they are not li- censed attorneys.

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• Arlington Central School District Board of Education v. Pearl and Theo- dore Murphy, 548 U.S. (2006): In a 6–3 decision, the Supreme Court ruled that prevailing parents are not entitled to recover fees for services rendered by experts in IDEA actions.

• Schaffer v. Weast, 546 U.S. (2005): The Supreme Court held that the burden of proof in a due process hearing that challenges an IEP is placed upon the party seeking relief.

REVIEW OF SPECIAL EDUCATION LAWS

Section 504 of the Rehabilitation Act of 1973 specifies, “No otherwise qual- ified handicapped individual in the United States . . . shall, solely by reason of . . . handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

A “handicapped person with a disability” means any person who

• has a physical or mental impairment that substantially limits one or more of their major life activities

• has a record of such impairment • is regarded as having such an impairment

EDUCATION OF THE HANDICAPPED ACT (1975)/PL 94-142

This was reauthorized and renamed the Individuals with Disabilities Educa- tion Act in 1990. It was reauthorized 1997 and again in 2004: “Public Law 94-142 and regulations implementing it provide for a free, appropriate public education for all handicapped children. The act provides safeguards for par- ents of handicapped children with special needs when special education deci- sions are made by the school. These safeguards an in place to ensure handi- capped children are protected, and that parents have recourse to administra- tive remedies.”

U.S. DEPARTMENT OF EDUCATION—OFFICE OF CIVIL RIGHTS

In July 1991, Section 504 of the Rehabilitation Act of 1973 was amended with respect to elementary and secondary school policies involving the place- ment of children with AIDS. Children with AIDS are qualified handicapped persons with a disability as defined by Section 504; therefore, if a child has AIDS and is of school age, he or she is considered a qualified handicapped person and as having a health impairment.

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STUDENTS WHO ATTEND PRIVATE/PAROCHIAL SCHOOLS

Some parents of students with special needs seek services outside their local public school. According to IDEA, students with special needs who are pa- rentally placed at private/parochial schools do not have an individual entitle- ment to services they would receive if they were enrolled in a public school. For those who receive services, the amount and type of services also may differ from the services the child would receive if placed in a public school by the parents or in a private school by a public agency.

The major provisions regarding children with disabilities enrolled by their parents in a private school—including religious elementary and secondary schools—are located in the statute at section 612(a)(10)(A) and in the regula- tions at 34 CFR §§ 300.130–300.144 and are summarized in the sections below. They include

• agency responsibility for conducting child find activities and determining equitable services: 34 CFR §§ 300.131–300.132

• consultation requirements: 34 CFR § 300.134 • written affirmation of timely and meaningful consultation: 34 CFR §

300.135 • child find activities: 34 CFR § 300.131 • data collection requirements: 34 CFR § 300.132(c) • determination and provision of equitable services: 34 CFR §§

300.137–300.138 • services plans for children with disabilities receiving equitable services:

34 CFR §§ 300.132(b), 300.137(c), and 300.138(b) • permission for delivery of services at the private schools by the local

education agency (LEA) to the extent consistent with law: 34 CFR § 300.139(a)

• determination of the proportionate share of federal IDEA funds to be spent on equitable services: 34 CFR § 300.133

• non-availability of an individual entitlement of parentally placed private school students to special education and related services: 34 CFR § 300.137(a)

• complaint procedures for private school officials regarding consultation: 34 CFR § 300.136

A recent change to the mandates includes the LEA that is responsible for conducting child find and ensuring the provision of equitable services The most recent provisions require the LEA with jurisdiction over the district in which the private school is located to be the responsible agency for imple- menting IDEA requirements for parentally placed children with disabilities, which includes the obligation that the LEA locate, identify, evaluate, and

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spend a proportionate share of IDEA funds for equitable services for children with disabilities enrolled by their parents in private, including religious, ele- mentary, and secondary schools located in that district.

FURTHER INFORMATION

For additional information on the Individuals with Disabilities Education Act and other federal education programs affecting private schools; private school statistics; publications; Internet links to the private school community; and similar resources, contact

Office of Innovation and Improvement U.S. Department of Education 400 Maryland Ave. SW Washington, DC 20202 Phone: 202-401-1365 Fax: 202-401-1368 E-mail: [email protected] Website: www.ed.gov/about/offices/list/oii/nonpublic/index.html

Office of Special Education Programs U.S. Department of Education 550 12th St. SW Washington, DC 20202 Phone: 202-245-7629 Fax: 202-245-7614 Website: http://idea.ed.gov

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