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Chapter Three

Special Education

BACKGROUND

Historically, students with disabilities have experienced widespread exclusion. The students were often educated in separate schools and classrooms. As a result, laws have been passed by Congress to protect individuals with disabilities from discrimination. In 1975, the Education for All Handicapped Children Act created special educational rights for students with disabilities. This law is now known as the Individuals with Disabilities Education Act (IDEA). In addition to this comprehensive law, Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) provide important legal protections for students with disabilities.

Teachers and school administrators consistently rank special education law as a topic that must be understood when working in a public school. These findings are not surpris- ing, as teachers often confront legal issues when working with special needs students. Thus, an understanding of these laws will help teachers better provide for students with disabilities in their classrooms and protect themselves from possible litigation.

The principal will ask for four volunteers and will assign each teacher volunteer a role. (Note: The principal may want to identify and prepare the four teachers prior to this activity.) The teachers will participate in a mock individualized education program (IEP) meeting while reading

from a prepared script. Before beginning the mock IEP meeting, the principal should read the background to set the context.

Background

Fred is a student with autism. His mother has been advocating for support services in school. She recently came across Applied Behavior Analysis (ABA) and believes that

Activator

Motivator

5 Minutes

Schimmel, David, et al. Principals Avoiding Lawsuits : How Teachers Can Be Partners in Practicing Preventive Law, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=4821088. Created from franklin-ebooks on 2024-09-06 14:01:57.

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34 Chapter Three

Fred’s school should adopt this system. The following took place at an IEP meeting that was convened to discuss Fred’s goals for the upcoming academic year.

Special Education Teacher: Thank you for coming to this IEP meeting to discuss Fred’s goals. Based on Fred’s most recent evaluation, we have decided to continue to provide Fred with support in his classes as well as some pull out support.

Parent: Have you all heard about ABA?

General Teacher: No, what is that?

Principal: Perhaps we should continue with our discussion about Fred’s goals.

Parent: (Ignoring the principal) ABA is a process called Applied Behavior Analysis. I found an organization on- line that provides training and support for schools. They say it works very well with students like Fred because it helps decrease behavioral problems.

Special Education Teacher: I have heard of it, but it was not part of our professional development this past year or this coming summer.

Parent: I’d like Fred to be in a program like this.

Teacher: Well, I think it’s a good idea, but to start a new program at this time of the year could compromise my ability to provide for all children in my classroom. I’m worried that I just won’t have the time to do ABA “right” and meet everyone else’s needs.

Principal: Our district doesn’t have the human resources to sponsor individual therapy for students. I have complete confidence in our faculty and the program we provide to all our special education students.

Occupational Therapist: There is not conclusive evidence that ABA works with chil- dren. If this program isn’t “research based,” we shouldn’t be using it.

After the meeting Fred’s mom said to the special education teacher, “I don’t know, I am confused. If this is something that would help Fred why won’t the school get the program? What can I do if I think Fred is not getting the programming he needs?”

Ask the participants what they think about the IEP meeting. Guiding questions may include:

1. What were the legal issues that arose during the meeting? 2. Does the parent have the right to appeal the decision not to use ABA? 3. Does the school need to provide ABA if the program meets Fred’s needs?

The answers to these questions will be clarified within the discussion below.

Rationale

There are more than six million students with disabilities in U.S. public schools. Lawsuits involving students with disabilities against school districts have been on the rise. With a greater understanding of the law, teachers will be able to avoid unnecessary lawsuits and better provide for their students.

5 Minutes

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Special Education 35

Objectives

Post and/ or state the following objectives for the lesson plan:

1. Teachers will be able to identify the key distinctions between IDEA, Section 504, and the ADA.

2. Teachers will be able to apply the laws to real- life classroom scenarios. 3. Teachers will be able to better confront special education issues arising in the

classroom.

The Law

After reading the introductory background information below, the prin- cipal will divide teachers into four separate groups. Each group will be given markers and pieces of large butcher paper that sticks to the wall. (If there are multiple groups on each topic, the principal may want to

ask each group to share one important point to avoid redundancy. The principal will then go around to each group asking for only one point at a time.)

• Group one will cover the Individuals with Disabilities Education Act IDEA (not including discipline),

• Group two will cover disciplining students with disabilities, • Group three will cover Section 504 of the Rehabilitation Act, and • Group four will cover the Americans with Disabilities Act (ADA).

Each group will be provided with a content handout. On the butcher paper, the teach- ers will highlight the most important aspects of the laws. This part of the activity should take between 7 and 10 minutes. Next, the teachers will present this information to the entire group, explaining and reviewing the key aspects of the law.

After each group has the opportunity to create a set of notes on the butcher paper, distribute a note sheet provided below. (Note: Also consider asking one person to take notes for the entire group. These notes can be distributed at a later time.)

15 Minutes

Identifying Students with Disabilities

States have the duty to identify children ages 0– 21 who are in need of services. This duty is known as “child find.” A parent, a state education agency, or a local education agency may request an evaluation of a child who is suspected of having a disability. School personnel must obtain parental permission before conducting an evaluation. If a parent refuses to give consent (or refuses to respond to district requests), school officials may begin due process procedures or mediation (discussed below) in order to proceed with the evaluation. It is important to note that it is permissible for school officials to choose not to pursue due process

Handout 3.1 Group 1: Individuals with Disabilities Education Act

(continued)

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36 Chapter Three

measures or go to mediation if the parents refuse the evaluation. It should also be highlighted that after an evaluation is completed, and the parents do not provide informed consent for services, school officials cannot pursue due process measures or go to mediation in order to obtain consent. And, school officials will not violate the law by not providing services to the child.

The evaluations must be accurate in order to ensure the proper placement of the child. To this end, a variety of assessment tools and strategies should be used (e.g., classroom observation and several different types of tests). If the parents disagree with the evaluation, they may seek an independent evaluation. If the parents opt for an independent evaluation, the school district does not need to accept the results, but they must be considered.

Providing for Students with Disabilities

Each state must provide a student receiving services under IDEA with a free appropriate public education (FAPE). The definition of appropriate has been at issue in several court cases. FAPE does not need to maximize a student’s learning potential; instead, a FAPE must merely provide a “basic floor of opportunity” for the student. All students receiving services under IDEA are entitled to FAPE.

The individualized education program (IEP) outlines how a student will receive FAPE. Specifically, based on the student’s evaluation, an IEP team prepares the IEP document. The IEP is designed to meet the unique needs of the child and outlines the goals and objectives for the child. The IEP team includes the parents, one general education teacher, one district administra- tor, one special education teacher, others with expertise that are relevant to the student’s needs, and in some cases the student. Students typically participate when they are able to understand and participate in the discussion. School officials must ensure parental participation in the IEP process. Part of this responsibility includes providing parents with notice of their rights under IDEA. Legal controversies have emerged when parents believe that the IEP does not provide their child with a FAPE (see P.L. v. New York Department of Education, 2014). Courts will continue to address what level of educational benefit a child must receive under the IDEA (see Endrew F. v. Douglas Cnty. Sch. Dist., 2015).

Students with disabilities must be educated in the least restrictive environment— in other words, with students who are not disabled to the maximum extent appropriate. Students with disabilities may only be removed from an educational setting with their general education peers when the instruction in the general education courses cannot be achieved satisfactorily. Factors that are considered in determining the least restrictive environment include: the educational benefits of placing children with disabilities in the general education classroom, the nonaca- demic benefits of such placements, the effect that the presence of students with disabilities would have on others in the classroom, and the costs associated with the placement. Often parents initiate lawsuits when they believe that their child was not placed in the least restrictive environment (see B.E.L. v. Hawaii, 2014).

School districts must also provide related services so that a child with a disability can benefit from special education services. For example, a school district should provide busing services to a student if this service is necessary to deliver special education. Courts have found, however, that medical services are not considered related services (although nursing services, occupa- tional therapy, and physical therapy are considered related services).

Students with disabilities may be required to pass competency exams with accommoda- tions before receiving a high school diploma. Accommodations might include questions in Braille, enlarged answer sheets, additional time, having tests read to students, or sign language

Handout 3.1 (continued)

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Special Education 37

responses. Before taking a competency exam, students should be given appropriate notice about the exam and the opportunity to learn the academic content. IDEA also requires that school officials provide transition services for students with disabilities (beginning at age 14) who are shifting from school to independent living, work, or postsecondary education. The transition plan should be individualized to meet each student’s needs.

Another provision under IDEA is due process for parents, which ensures fairness of edu- cational decisions. Due process occurs when a parent expresses complaints regarding the child’s evaluation, identification, or placement. Some of the related procedural safeguards for parents include the following: (1) notification in writing of the referral; (2) ability to grant or deny permission to evaluate the student; (3) notification of IEP meetings (and the right to be present); (4) participation in all decision- making regarding the child with the exception of informal conversations between school officials; (5) bringing an advocate to meetings; and (6) the right to review all of the child’s records. If there is a disagreement between the parents and school officials, either side may initiate a due process hearing. It is important to note that IDEA requires that mediation be available to all parties before a due process hearing is con- ducted. During the mediation session a neutral third party assists parents and school officials to develop a solution. If the issue is not settled in mediation, parents can initiate a due pro- cess hearing. Such a hearing involves an independent hearing officer who ultimately makes a decision based upon the evidence presented. If either party is dissatisfied, a complaint can be filed in court.

Disciplining students with disabilities often raises a lot of questions for teachers. Basically, students with disabilities are disciplined in the same manner as students without disabilities, if there is no connection between their misconduct and the disability. However, if a student with a disability is suspended for ten or more total, cumulative days during the school year, the IEP team and other relevant parties must conduct a manifestation determination to decide whether the student’s disability is related to the misconduct. If a relationship exists, the IEP team needs to conduct functional behavioral assessments (FBA) and incorporate behavior intervention plans (BIP) into the IEP if necessary. When conducting an FBA, the IEP team develops educational programming that is related to supporting the student’s behavioral problems. The team cre- ates a BIP based on the FBA. The BIP should implement several strategies that would prevent the behavior at issue from reoccurring. It is also important to note that when a student who is receiving services under IDEA is removed for more than ten days, it is generally considered a change in placement and requires that the child receives a new IEP. During the time that the new IEP is created, the student needs to remain in their original placement. This is known as the stay put provision.

If the student brings a weapon to school, possesses illegal drugs at school, or inflicts serious bodily harm on another person at school, school officials may forego a manifestation determina- tion and remove a student with a disability to an interim alternative educational setting (IAES) for up to 45 school days. In these cases, a student may be placed unilaterally in an IAES, without the consent of a parent. During these 45 days, FAPE must be provided. Specifically, the child must continue to participate in the curriculum but in another setting.

Students who have not yet been identified as needing services under IDEA might also get legal protection when removed from the classroom for more than ten days. Specifically, if school officials knew or should have known that a student had a disability before the incident occurred,

Handout 3.2 Group 2: Disciplining Students with Disabilities

(continued)

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Unlike IDEA, Section 504 is a civil rights law that prohibits those institutions receiving federal funds from discriminating against people with disabilities. Section 504 is a much broader law than IDEA and therefore protects more students. Students who are identified under IDEA also receive protections under Section 504. However, those students receiving services under Section 504 do not automatically receive services under IDEA (e.g., a student in a wheelchair may qualify under Section 504 but not IDEA).

To qualify for services under Section 504, the individual must be a person who has a physical or mental impairment which substantially limits one or more major life activity, has a record of such impairment, and is regarded as having such impairment. A major life activity may include, but is not limited to, seeing, hearing, walking, and talking. Individuals who qualify for services under Section 504 are entitled to reasonable accommodations to facilitate their participation in educational activities. Courts have found that an otherwise qualified individual, under Section 504, is someone who can meet all education or job requirements with reasonable accommoda- tions. A reasonable accommodation might be Braille, a notetaker, a sign language interpreter, or more time on an assignment. On the other hand, a school would not be forced to allow a student who is legally blind to try out for the varsity basketball team— this would be an example of an unreasonable accommodation.

Similar to IDEA, students receiving services under Section 504 must be provided a free appropriate public education and must be educated in the least restrictive environment. When determining FAPE, Section 504 compares the services and treatment provided to students with disabilities to those provided to students without disabilities. The individualized accommoda- tion plan for Section 504 students is called a 504 accommodation plan. Although a written accommodation plan is not required by the law, most school districts do require such a plan.

Similar to Section 504, the ADA was designed to eliminate discrimination based on disability. In 2008, Congress clarified the definition of disability when it passed the ADA Amendments Act. The purpose of the amended legislation was to make it easier to prove an impairment qualified as a disability. Specifically, this law protects those individuals who have a physical or mental

Handout 3.2 (continued)

the student should not be removed until an IEP team determines the student’s eligibility for special education services.

Recent news reports have highlighted discipline issues related to the use of restraint and seclusion in schools. As a result, in 2012, the U.S. Department of Education issued a “Resource Document” to assist school officials with this issue. Despite this guidance, litigation involving restraint and seclusion continues (see, e.g., Muskrat v. Deer Creek Pub. Sch., 2013). One article discusses a recent lawsuit involving a student who was placed in an “isolation box” that was the size of a phone booth to calm her down. Her parents argued that school officials were aware of the child’s past trauma involving confinement (see Bouboushan, 2014). The litigation suggests that students’ claims related to seclusion and restraint have generally been rejected by courts if school officials’ conduct was considered reasonable, not conscience- shocking, and did not cause “obviously excessive” injury to the student (see Eckes & Watts, 2014).

Handout 3.3 Group 3: Section 504 of the Rehabilitation Act and Americans with Disabilities Act

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Special Education 39

Supplemental Activity

Consider sending out the content to this lesson prior to the meeting. Along with the content, provide teachers with one of the three content areas to take notes on. This is one strategy to save time rather than having teachers reading during the professional development session.

Application/ Content to Practice

After the butcher paper presentations are complete, the principal will ask one teacher in each group to act as a moderator as the groups discuss each scenario below. Provide each group with the scenarios. (Note: The moderators should be provided with the handout with the scripted guiding questions.)

impairment that substantially limits one or more major life activities; have a record of impair- ment; or are regarded as having such an impairment. The ADA incorporates all of the Section 504 law and expands its reach to include all entities— public or private. Both Section 504 and ADA apply to persons of all ages. Those students who are “otherwise qualified” must be permit- ted to participate in an educational program unless their participation poses a significant safety risk or an undue burden for the school district. Although the ADA is very similar to Section 504 for students, there is one major difference: the ADA requires that school districts provide access to individuals with disabilities who are attending school events. Thus, the ADA requires that athletic stadiums, lecture halls, and other facilities be barrier free (e.g., the school should ensure facilities have wheelchair ramps). When removing structural barriers from existing facilities, it must be “readily achievable” and not unduly expensive. When making new structures, however, the building must comply with ADA regulations and be barrier free.

Unlike the IDEA, both Section 504 and the ADA also apply to school district employees. Both laws require school districts to make reasonable accommodations for teachers with dis- abilities. The accommodation must be reasonable unless it would impose an undue hardship on the employer. “Reasonable” has been interpreted to mean that the accommodation must enable the employee to perform the “essential functions” of the job. Courts often decide what might be a reasonable accommodation. For example, one court ruled that the ADA does not require a district to create a full- time position for a teacher with pedophobia (Waltherr- Willard v. Mariemont City Schools, 2015).

1. Individuals with Disabilities Education Act IDEA 2. Disciplining Students with Disabilities 3. Section 504 of the Rehabilitation Act and Americans with Disabilities Act (ADA)

15 Minutes

Handout 3.4 What’s Important to Know About

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Handout 3.5 Special Education Scenarios

Scenario One

Parents of an elementary school student with autism requested that the school district provide their child with the Applied Behavior Analysis (ABA) method. The ABA method attempts to ensure a match between the behavioral intervention and the specific behavioral problems at issue. The ABA method is a comprehensive intervention to behavioral issues— it is ideally carried out in every setting possible.

The parents argued that their child would educationally benefit from the ABA method, and in making this argument the parents cited several studies which demonstrated the effectiveness of the ABA. The school district denied this request, arguing that it was too costly and that other methods were equally as effective.

QUESTIONS

1. Would the school district be denying this student FAPE if it did not implement the ABA method?

2. What if the parents pulled their child out of this school and sent him/ her to a private school that used the ABA method? Would the parents be able to be reimbursed for the private- school tuition?

3. How would the parents appeal the school district’s decision under IDEA?

Scenario Two

A student receiving services under IDEA spray painted graffiti inside the school’s restroom. The student painted “Death to Principal Stuckey.” The student had already been suspended nine days this academic year. Thus, school officials needed to conduct a manifestation determination before suspending this student for five additional days. The parents argued that their child’s diagnosis of attention- deficit hyperactivity disorder (ADHD) was related to his misconduct; thus, he could not be suspended. (Note: Although ADHD is not listed as one of the 13 specific categories of disability, it is sometimes included under the “other health impairment” category.)

QUESTIONS

1. Do you think a diagnosis of ADHD could be found to be related to the conduct described above?

2. Do you think that school officials could have moved this student to an interim alternative educational setting for 45 days because of the “death threat” to Principal Stuckey?

3. Would a manifestation determination need to be conducted before placing this child in an interim alternative education setting? How would this be decided?

Scenario Three

A kindergarten student was diagnosed with acquired immunodeficiency syndrome (AIDS) from a contaminated blood transfusion received at birth. The child’s doctors wrote the school district indicating that there was no medical reason why the child should not be able to attend kindergarten. The school district allowed the child to attend. After the child bit another classmate (no skin was broken), school officials had the child evaluated and decided that he should be tutored at home. The child’s parents filed a lawsuit, contending that their son should be placed in the kindergarten classroom.

QUESTIONS

1. Would this child be found to be a “handicapped” person under Section 504? Is this student “otherwise qualified” to attend public school?

2. How do school officials balance the rights of the individual student and the safety of the rest of the students in the class?

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Special Education 41

Scenario Four

School officials dismissed a fifth- grade teacher who suffered epileptic seizures. The school district found out about the seizures because parents had seen the teacher have an episode at the mall and voiced concerns about student safety to the superintendent. After an investigation, school officials learned that even when the teacher took her medication, there was still a very small chance that she could have a seizure. The teacher suffered from approximately two seizures per year. The school board did not renew the teacher’s contract. The teacher filed a lawsuit contending that the school board violated her rights under the Americans with Disabilities Act.

QUESTIONS

1. Is this teacher otherwise qualified? 2. What would this teacher argue under Section 504?

Handout 3.6 Special Education Scenarios for Moderators

Scenario One Question 1: It depends on the facts of the case. The school must provide an educational program that is considered “appropriate.” An appropriate education is not necessarily the “best” education. Therefore, if the school’s alternative is appropriate, then rejecting the parents’ option does not deny FAPE. However, cost is never a justification to deny appropriate services. Further, even if what the parents are suggesting is better than the “floor of opportunity,” school officials may want to provide the better services. In the long run, compromise is often less costly than due process and fosters a cooperative relationship. The IEP team would determine whether the ABA method provided the student with a FAPE.

Question 2: The parents would need to demonstrate that the child’s placement in the public school was inappropriate and that the private school is appropriate (see School Committee of Burlington v. Department of Education of Massachusetts, 1985). Parents who unilaterally place their child in a private school are certainly taking a financial risk. If the public school placement was found to be appropriate, the parents would not be reimbursed. In a recent case, the Third Circuit did not find that the parents were entitled to any reimbursement for private school tuition (see H.L. v. Downington Area Sch. Dist., 2016).

Question 3: The parents must exhaust their administrative options under the IDEA first. Thus, the parents would first participate in a mediation and may eventually participate in a due process hearing with an independent hearing officer.

Scenario Two Question 1: We obviously need more facts about the student in this scenario, but this issue has certainly arisen in public schools before (see Richland School District v. Thomas P., 2000). Based on the limited facts, however, it could be argued that the student’s disability (ADHD) is related to the student’s conduct (spray painting). Of course, it could be easily argued that there is no relation between the conduct and the disability. The IEP team would resolve this issue by analyzing the student’s prior history and current diagnosis to determine if any relation exists.

Question 2: No. The student could only be unilaterally placed in an interim alternative educational setting for 45 days if the student inflicted serious bodily harm. The student could also be moved to an interim alternative educational setting if the parents agreed. Decisions about the interim alternative educational setting are made by the IEP team, although it may be ordered by a due process hearing officer as well.

Question 3: In this case the graffiti would not meet the three factors to justify an interim alternative educational setting (IAES) without a manifestation determination. However, the 45- day IAES may be used even when the conduct may be related to a student’s disability. Thus, no manifestation determination is needed before placing the student in the interim alternative educational setting if drugs, weapons, or an assault was involved.

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Scenario Three Question 1: At least one court has found that the student was a “handicapped person” under Section 504 and was “otherwise qualified” to attend kindergarten in a public school setting after having been diagnosed with AIDS. The court reasoned that there was no significant evidence that the child posed any significant risk of harm to his classmates.

Question 2: In balancing this student’s rights under Section 504 and the safety of his classmates, the court noted that there is no medical evidence that AIDS can be spread through biting (see Thomas v. Atascadero Unified School District, 1987; District 27 Community School Board v. Board of Education of the City of New York, 1986). It should also be noted that when AIDS is reported to public health departments, it must be done in a way that respects the privacy of the student (in the same manner that other diseases are treated with regard to privacy).

Scenario Four Question 1: This teacher could reasonably argue that she was otherwise qualified under the ADA. In so doing, she may demonstrate that school officials could reasonably accommodate her by training several school officials about how to respond if a seizure were to occur in the classroom. For example, the school nurse or a teacher’s aide could be trained in working with the teacher if a seizure occurred in the future.

Question 2: This teacher could also rely upon Section 504, arguing that although she has a physical impairment that substantially limits a major life activity, she is otherwise qualified to teach with reasonable accommodations. She would also contend that she has the necessary physical qualifications for the job.

Assessment

The principal will assess the participants using a strategy called “Stars and Wishes.” The principal will hand out 3 × 5 cards and ask teachers to write three things learned on one side and three things they want to know more about on the other. After a few minutes participants

should be asked to share some of their responses to both questions. Principals need to consider what they do with the “wishes” list. For example, principals can provide a summary of the “wishes” to the district’s special education director and request that the director respond.

FAQ

As time permits, you may add some of these additional questions to the followup discussion.

1. Are the suspension days for students receiving services under IDEA counted cumulatively or consecutively? The regulations suggest that 10 cumulative days would be considered a change of place- ment. It is also important to note that after 10 cumulative days of suspension, educa- tional services would need to be provided to the child. Also, when there is a request for a hearing, the stayput provision applies and the child will remain in his or her present edu- cational placement unless school officials and parents agree on the child’s placement.

10 Minutes

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Special Education 43

2. Must educational services be provided to students receiving services under IDEA if the suspension is 10 days or less? No. When suspensions are less than 10 days, students are treated the same as general education students. If the suspension is more than 10 days, educational services that align with the child’s IEP must be provided in the alternative setting.

3. When must the IEP team convene to develop a behavioral intervention plan, if one has not already been completed? Within 10 business days of any suspension that exceeds 10 cumulative days throughout the school year.

4. Must school officials administer prescription medication to a student? Yes. School officials must provide related services. This related service of admin- istering medication is more akin to a service provided by a nurse rather than a doctor. Thus, school officials are required to administer medication to students.

5. Could school officials require students with disabilities to take high-stakes tests? Yes. If the student has been given adequate notice, appropriate curriculum, and necessary accommodations, a test may be administered. The student’s IEP must describe the modifications to be made to enable students to participate in the test- ing. In several states, students with disabilities who do not pass the high-stakes testing requirements are still granted certificates of completion. Certain students with cognitive disabilities may have the option to a take a different test that is based on the same or different achievement standards (e.g., life skills).

6. What if the costs associated with the child’s placement are considered too expensive by the school district? The school must provide the most appropriate placement for the child without regard to the cost. However, it is important to note that appropriate does not mean that school officials are required to maximize a student’s potential.

7. If a parent requests year round schooling for a student receiving services under IDEA, must the school district provide it? Summer school services need only be provided if it is demonstrated that it pro- vides the student with a FAPE. For example, if no services during the summer led to substantial regression, the school district must provide services.

8. What law would teachers with disabilities rely upon? Section 504 and the ADA would provide protections. In addition, states may have adopted laws providing protections for employees as well. For example, a high school teacher with a mobility impairment in one arm or leg should be employed if a reasonable accommodation can be made to enable performance of essential functions.

9. Are there state laws that impact students with disabilities? Yes. States have enacted laws that oftentimes mirror and expand upon the require- ments of IDEA.

10. Can you expel a special education student? Yes. If the student’s conduct is not related to his or her disability, the student can be expelled. However, during the expulsion, the student must receive edu- cational services as provided by the IEP until age 21. Thus, special education

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44 Chapter Three

students cannot be expelled in the same manner as nonspecial education students (because the school district must continue educational services to the special education student).

11. Can parents request that their children be removed from special education programs? Yes. Parents can revoke consent for placement and remove their children out of special education at any time. The parent must revoke services in writing and school districts will not be considered in violation of the law for failing to make FAPE available. Mediation or due process procedures may not be used by school officials to obtain agreement to keep the child in the special education program.

12. Must charter schools accept students with disabilities? Yes. Charter schools must follow federal and state laws. As such, charter schools may not exclude students with disabilities.

13. Who is really responsible for implementing the IEP? Everyone on the IEP team. However, the classroom teachers must ensure that it is implemented on a daily basis.

14. Must students with disabilities be accommodated in extracurricular athletics? IDEA’s regulations state that school personnel must consider whether an extracur- ricular or nonacademic activity should be included in the student’s IEP. Likewise, Section 504 requires that students with disabilities be provided equal opportuni- ties to participate in physical education courses and extracurricular athletics. The ADA does not permit schools to discriminate on the basis of disability in provid- ing their services, programs, and activities. In 2013, the Office for Civil Rights issued a “Dear Colleague Letter” on the matter providing further guidance. The letter states that school officials should ensure that students with disabilities have consistent opportunities to participate in extracurricular athletics that are equal to those of other students.

15. Have students with disabilities who have argued a denial of FAPE when they have been severely harassed brought a viable legal claim? The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance to public schools nationwide in the form of a “Dear Colleague Letter” (Guidance) that focuses on the bullying and harassment of students with dis- abilities. The Guidance details school officials’ responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding the bullying of students with disabilities. It adds, “If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring” (see U.S. Department of Education, 2013b).

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Special Education 45

Resources/ Materials

Relevant Quotes

[W] e know that education is the key to our children’s future, and it is the IDEA that ensures all children with disabilities have access to a free appropriate public education. We have seen tremendous progress over the past 25 years— students with disabilities are graduating from high school, completing college, and entering the competitive workforce in record numbers— and we must continue this progress over the next 25 years and beyond.

— President Bill Clinton (2000, in Katsiyannis, Yell, & Bradley, 2001, p. 324)

Free appropriate public education … evinces a congressional intent to bring previ- ously excluded handicapped children into the public education systems of the states and to require the states to adopt procedures which would result in individualized consideration of and instruction for each child.

— Board of Education v. Rowley (1982)

A basic floor of opportunity provided by the Act [IDEA] consists of access to spe- cialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

— Board of Education v. Rowley (1982)

REFERENCES

B.E.L. v. Hawaii, 63 F.Supp.3d 1215 (D. Hawaii, 2014). Board of Education of the Hendrick Hudson Central School District, v. Rowley, 458 U.S. 176

(1982). Bouboushian, J. (2014, Aug. 5). Parents sue school for its isolation box. Courthouse News

Service. Retrieved from http:// www.courthousenews.com/ 2014/ 08/ 05/ 70105.htm District 27 Community School Board v. Board of Education of the City of New York, 502

N.Y.S.2d 325 (N.Y. 1986). Endrew F. v. Douglas Cnty. Sch. Dist. Re- 1, 798 F.3d 1329 (10th Cir. 2015). Katsiyannis, A., Yell, M., & Bradley, R. (2001). Reflections on the 25th anniversary of the

Individuals with Disabilities Education Act. Remedial and Special Education, 22, 324– 334. H.L. v. Downington Area Sch. Dist., 624 Fed. Appx 64 (3d Cir. 2016). Muskrat v. Deer Creek Public School, 715 F.3d 775 (10th Cir. 2013). P.L. v. New York Department of Education, 56 F.Supp.3d 147 (E.D.N.Y. 2014). Richland School District v. Thomas P., 2000 U.S. Dist. Lexis 15162 (Wis. 2000). School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359

(1985). Thomas v. Atascadero Unified School District, 662 F.Supp. 376 (Cal. 1987).

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http://www.courthousenews.com/2014/08/05/70105.htm

46 Chapter Three

U.S. Department of Education (2012, May). Restraint and seclusion: Resource document. Retrieved from http:// www2.ed.gov/ policy/ seclusion/ restraints- and- seclusion- resources.pdf

U.S. Department of Education Office for Civil Rights (2013a, Jan. 25). Dear colleague letter (disability and athletics). Retrieved from http:// www2.ed.gov/ about/ offices/ list/ ocr/ letters/ colleague- 201301- 504.pdf

U.S. Department of Education Office of Special Education and Rehabilitative Services (2013b, Aug. 20). Dear colleague letter (bullying and harassment). Retrieved from http:// www. ed.gov/ policy/ speced/ guid/ idea/ memosdcltrs/ bullyingdcl- 8- 20- 13.doc

Waltherr- Willard v. Mariemont City Schools, 601 Fed. Appx. 385 (6th Cir. 2015).

ADDITIONAL RESOURCES

Alexander, K., & Alexander, M. D. (2011). American public school law (8th ed.). Belmont, CA: Wadsworth (See chapter 10).

Eckes, S., & Watts, L.P. (2014, March). The use of restraint and seclusion. Principal Leadership, 8– 10.

McCarthy, M., Cambron- McCabe, N., & Eckes, S. (2014). Public school law. Boston, MA: Allyn and Bacon/ Pearson (See chapter 6).

Schimmel, D., Stellman, L., Conlon, C., & Fischer, L. (2014). Teachers and the law (9th ed.). Boston, MA: Allyn and Bacon (See chapter 16).

Russo, C. (2009). Reutter’s the law of public education (7th ed.). New York: Foundation Press (See chapter 14).

Yell, M. (2006). The law and special education. Upper Saddle River, NJ: Pearson Prentice Hall.

SUPPLIES AND MATERIALS

• Butcher paper and markers • 3 × 5 cards

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http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf

http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf

http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf