Education

The Foundation for Educational Rights

of Children with Disabilities

By William R. Baesman, Esq.

The Individuals with Disabilities Education Act (IDEA)

  Prior to 1975, school age children with disabilities were excluded from appropriate educational services in public school systems throughout the nation. The rule was institutionalization and exclusion from public schools. The exception was the provision of special education services in segregated school facilities. Advocates for children with disabilities struggled to obtain equal and appropriate educational services for persons with disabilities by confronting public school districts with the constitutional rights of people with disabilities first in 1971 in Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania , 334 F. Supp. 1257 (E.D. Pa. 1971), and again in 1972 in Mills v. Board of Education , 348 F. Supp. 866 (D.D.C. 1972). Without an enforced regulatory structure, the fate of these legal efforts was doomed to isolated cases and a future of endless ineffectual battles for children with disabilities as a whole. But these advocates, along with thousands of parents of children with disabilities, have changed the expectations for children with disabilities by the enactment of the Education of All Handicapped Children Act in 1975, the amendment of Section 504 of the Rehabilitation Act in 1975, and the passage of the Americans With Disabilities Act in 1990, through a persistent and laborious effort.

  The Education of All Handicapped Children Act, now amended as The Individuals With Disabilities Education Act (the "IDEA"), and its regulations focus on provisions which require a designed curriculum to meet the specific educational needs of a student with disabilities, procedures which require parent and guardian participation in the curriculum design, and an inclusive educational environment within which to implement the curriculum. The aim of the IDEA is to compel public school districts to provide educationally appropriate services to students with disabilities in a typical school setting under the observation of the student's parent or guardian. If the services are inappropriate, or proposed for implementation in an isolated setting, or if the parent or guardian's participation is precluded, the IDEA provides a due process proceeding as a safeguard to resolve conflicts.

Educationally appropriate services under the IDEA are special education instruction and educationally supportive services provided in combination with a regular education curriculum that address the abilities as well as the disabilities of an eligible student. Services are to be provided in conformity with a designed curriculum termed an "individualized education program" ("IEP"). The IEP is developed after the student is evaluated to determine his or her level of educational ability and then must contain the special education instruction and support services the student needs, special curriculum goals and objectives, the amount of time the student requires for special instruction and services, and an objective method for measuring the student's progress. The IEP must be both designed and implemented to afford a student with disabilities with "meaningful educational benefit".

  The IEP is developed by public school personnel in conjunction with the student's parents or guardian. The student's parents or guardian must be included in the meetings held to fashion the IEP and their participation must be permitted to have significance. While the parents or guardian's role in an IEP meeting is no greater than the other participants, they have the right to object to any aspect of the IEP to which they might disagree and request that an impartial hearing officer settle the dispute at a due process hearing.

  After the IEP is designed, the final component of the IEP meeting is a placement determination. Again, school personnel and the student's parents or guardian must decide the environment where the student's IEP can be implemented which permits the maximum presence and involvement with the student's typical peers. This decision must be made based upon the contents of the student's IEP while weighing the supplemental aids and services the student needs in order to accomplish such an integrated placement. The student's neighborhood school is always preferred unless the IEP requires some other arrangement. Placement decisions are also subject to the objection of the parents or guardian and a due process resolution.

Section 504 of the Rehabilitation Act (Section 504)

  Section 504 of the Rehabilitation Act ("Section 504") was passed in 1973 and amended in 1975. Its purpose was to eliminate the discrimination of persons with disabilities by entities which receive federal funds. Since most, if not all, public school districts are the recipients of federal funds, Section 504 protects students with disabilities from discrimination in public schools. The 1975 amendments specifically address the elementary and secondary public school programs and compliment the provisions of the IDEA as well as adopting parts of them. In many cases, compliance with the provisions of the IDEA regarding a student with disabilities who is already receiving educational services pursuant to the IDEA will also be in compliance with Section 504. Section 504 supplements the IDEA by protecting students with disabilities who may not be, or at least have not been identified as, eligible under the IDEA, yet meet the definition of a qualified person with disabilities under Section 504 provisions. The remedial provisions of Section 504 provide more extensive relief than the remedies provided under the IDEA by permitting damages for intentional discriminatory violations in addition to prospective injunctive relief. While there is no requirement that administrative remedies be exhausted to bring an action exclusively under Section 504, if the relief sought under Section 504 can also be obtained through an action under the IDEA, the administrative remedies provided under the IDEA must first be exhausted.

The Americans with Disabilities Act (ADA)

  The ADA adopts the provisions of Section 504 as minimum requirements, and consequently, adopts, in part, the provisions of the IDEA when a student with disabilities is receiving educational services pursuant to the IDEA. Coinciding with Section 504, the administrative remedies provided under the IDEA must first be exhausted before bringing an action under the ADA and the ADA provides for the recovery of damages for intentional discriminatory violations in addition to prospective injunctive relief. However, where the provisions of the ADA provide protections in addition to those provided under Section 504, and thus the IDEA, the provisions of the ADA are controlling.

  The ADA regulations provide additional protections for students with disabilities by permitting each student to reject segregated programs, services and activities offered by a school district in favor of their participating in and benefiting from the programs, services and activities offered to their peers who do not have disabilities. While the ADA does not prohibit a school district from providing separate and different programs for persons with disabilities, it does require school districts to provide reasonable accommodations to those students with disabilities who choose to participate in the district's typical programs so long as the necessary accommodations do not cause the district undue financial burden.

For More Information

For more specific information or publications about the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, or the Americans with Disabilities Act, contact your local Arc chapter or the following organizations and agencies.

The Legal Center for People with Disabilities and Older People

Peak Parent Center

Colorado Department of Education, Special Education Services