Special Education Law

by Murdick, Nikki L.; Gartin, Barbara; Crabtree, Terry Lee

• ISBN13: 9780136474135
• ISBN10: 0136474136
• Edition: 2nd
• Format: Paperback
• Copyright: 2007-01-01
• Publisher: Prentice Hall

Summary

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

Table of Contents

PART I Bases for Special Education Services	1	(36)
Overview of Special Education Services	3	(16)
Deinstitutionalization and Normalization	4	(3)
Advocacy	7	(2)
Civil Rights Movement	9	(1)
The Kennedy Era	9	(1)
Litigative Base	10	(3)
Brown v. Board of Education of Topeka, Kansas (1954)	10	(1)
Hobson v. Hansen (1967)	11	(1)
PARC v. Commonwealth of Pennsylvania (1972)	12	(1)
Mills v. Board of Education of the District of Columbia (1972)	12	(1)
Diana v. State Board of Education (1970)	13	(1)
Larry P. v. Riles (1972, 1974, 1979, 1984)	13	(1)
Legislative Base	13	(1)
The Rehabilitation Act of 1973	13	(1)
Developmental Disabilities Assistance and Bill of Rights Act of 1975	14	(1)
Summary	14	(1)
References	15	(1)
Briefing: Brown v. Board of Education	16	(3)
A New Foundation for Special Education Services	19	(18)
The Federal Base for Special Education Services	21	(5)
P.L. 89-10, Elementary and Secondary Education Act of 1965	21	(1)
P.L. 91-230, Education of the Handicapped Act of 1970	21	(1)
P.L. 93-380, Education Amendments of 1974	22	(1)
P.L. 94-142, Education for All Handicapped Children Act of 1975	22	(4)
Subsequent Reauthorizations and Amendments to EAHCA	26	(2)
P.L. 99-372, Handicapped Children's Protection Act of 1986	26	(1)
P.L. 99-457, Education of the Handicapped Act Amendments of 1986	26	(1)
P.L. 101-476, Individuals with Disabilities Education Act of 1990	27	(1)
P.L. 102-119, The Individuals with Disabilities Education Act Amendments of 1991	27	(1)
P.L. 105-17, The IDEA Amendments of 1997	27	(1)
Federal Statutes Supporting IDEA	28	(2)
P.L. 93-112, Rehabilitation Act of 1973	28	(1)
P.L. 101-336, Americans with Disabilities Act of 1990	29	(1)
Summary	30	(1)
References	30	(1)
P.L. 105-17: Title and Findings	31	(6)
PART II Six Basic Principles of Special Education Legislation	37	(102)
Free Appropriate Public Education	39	(16)
Equal Protection Doctrine	40	(4)
Application of Equal Protection Principle in Education	44	(7)
Pre-EAHCA Litigation	44	(1)
Legislation Applying Equal Protection Principle	45	(3)
Accessibility of Education for All Children with Disabilities	48	(3)
Summary	51	(1)
References	51	(1)
Briefing: Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)	52	(3)
Nondiscriminatory Evaluation	55	(20)
Basis for the Principle of Nondiscriminatory Evaluation	57	(2)
Hobson v. Hansen (1967)	57	(1)
Larry P. v. Riles (1972, 1979)	58	(1)
Parents in Action on Special Education (PASE) v. Hannon (1980)	59	(1)
Legislative Basis for Nondiscriminatory Evaluation	59	(3)
The Education for All Handicapped Children Act of 1975	59	(1)
Section 504 of the Rehabilitation Act of 1973	60	(1)
The Americans with Disabilities Act of 1990	61	(1)
Protection in Evaluation Procedures (PEP)	62	(10)
Preplacement Evaluation	62	(1)
Evaluation Materials and Procedures	63	(4)
Independent Educational Evaluations	67	(1)
Reevaluation	68	(1)
Additional Evaluation Issues	69	(3)
Summary	72	(1)
References	72	(1)
Briefing: Larry P. v. Riles (1972, 1974, 1979, 1984)	73	(2)
Individualized Education Program (IEP)	75	(20)
Basis for Individualized Education Programs	76	(1)
Individualized Education Program (IEP)	77	(6)
IEP Litigation	83	(8)
Appropriateness of the IEP	84	(1)
Related Services and the IEP	85	(4)
Related Services: Other Therapies and Services	89	(1)
Extended School Year	89	(2)
Summary	91	(1)
References	91	(1)
Briefing: Burlington Sch. Comm. v. Mass. Dept. of Educ. (1985)	92	(3)
Least Restrictive Environment (LRE)	95	(18)
Genesis of Least Restrictive Environment Principle: Deinstitutionalization	96	(1)
Legislative Basis for Least Restrictive Environment	97	(3)
Continuum of Alternative Placements (CAP)	98	(2)
Judicial Interpretations of LRE Principle	100	(2)
Areas of LRE Litigation	102	(6)
Mainstreaming	102	(1)
Inclusion	102	(3)
Neighborhood School	105	(1)
Placement in a Private School	106	(1)
Parental Reimbursement	106	(1)
Religious Groups	107	(1)
Funding Limitations	107	(1)
Summary	108	(1)
References	108	(1)
Briefing: Mattie T. v. Holladay (1979)	109	(4)
Procedural Due Process	113	(16)
Amendment XIV to the United States Constitution	114	(1)
Early Due Process Litigation	114	(3)
Suspension and/or Expulsion	115	(1)
Exclusion	116	(1)
Legislation and Due Process Procedures	117	(1)
Litigation After P.L. 94-142	118	(7)
Providing Notice	119	(1)
Required Content of Notice	120	(2)
Parental Access to Records	122	(1)
Mediation	122	(1)
Impartial Due Process Hearings	123	(1)
Timeliness of Process	124	(1)
Summary	125	(1)
References	126	(1)
Briefing: Max M. v. Thompson (1984)	127	(2)
Parental Participation	129	(10)
IDEA and Parental Participation	130	(1)
Parental Participation Litigation	131	(3)
Special Situations	134	(1)
Surrogate Parents	134	(1)
Foster Parents	135	(1)
Students at the Age of Majority	135	(1)
Summary	135	(1)
References	136	(1)
Briefing: Reusch v. Fountain (1994)	136	(3)
PART III Compliance Procedures	139	(44)
Enforcement of Special Education Law	141	(20)
Pre-EHA Judicial Methods of Enforcement	142	(5)
Court Citations for Contempt	142	(1)
Court-Appointed Special Masters	142	(1)
Doctrine of Federal Abstention	143	(1)
Grounds of Mootness	144	(2)
Failure to Prosecute	146	(1)
Voluntary Dismissal	146	(1)
Post-EAHCA Compliance Techniques	147	(5)
Authorization and Appropriation of Monies	147	(1)
Exhaustion of Remedies	148	(1)
Private Right of Action	149	(1)
Attorney Fees	150	(2)
Remedies for Violations of EAHCA	152	(3)
Permanent Injunctions	152	(1)
Compensatory Education	153	(1)
Monetary Fines	154	(1)
Punitive Damages	154	(1)
Summary	155	(1)
References	156	(1)
Brifing: Ridgewood Bd. of Educ. v. N.E. (1999)	157	(4)
Mediation and Impartial Due Process Hearing	161	(22)
Mediation	162	(4)
Requirements for Mediation Procedures	162	(1)
Selection and Impartiality of Mediators	162	(1)
Parents Who Elect Not to Use Mediation	163	(1)
The Mediation Process	163	(3)
Due Process Hearing	166	(7)
Hearing Officer(s) Selection and Impartiality	167	(1)
The Hearing Process	167	(3)
Basic Order of a Due Process Hearing	170	(1)
Due Process Hearing Report	171	(1)
Due Process Hearing Decisions	172	(1)
Expedited Due Process Hearings	173	(1)
Summary	173	(1)
References	174	(1)
Due Process Hearing Decision	174	(9)
PART IV Issues	183	(26)
Ethics and the Special Education Professional	185	(8)
CEC Code of Ethics	186	(1)
The Law and Ethical Practice	187	(3)
Principle-Based Ethic	187	(1)
Virtue-Based Ethic	187	(1)
IDEA and Ethical Practice	188	(2)
Summary	190	(1)
References	190	(3)
Unresolved Issues	193	(16)
Least Restrictive Environment	194	(1)
Expansion of the Principle of Least Restrictive Environment	195	(1)
Diploma and Graduation Requirements	196	(1)
Discipline	196	(4)
Manifestation Determination Review	197	(2)
Juvenile Authority Reports	199	(1)
Conflict Resolution	200	(5)
Parents, Surrogate Parents, and Guardians	201	(1)
Tape Recordings	202	(1)
Attorney Fees	203	(1)
Mediation	203	(2)
Change of Placement	205	(1)
Confidentiality of Records	206	(2)
Conflict Between FERPA and IDEA	206	(1)
Educational Records	207	(1)
Summary	208	(1)
References	208	(1)
APPENDIX A The American Legal System	209	(7)
Governance of the United States of America	209	(1)
Sources of Law	209	(3)
Federal Level	209	(2)
State Level	211	(1)
Local Level	212	(1)
United States Court System	212	(4)
Equity Law	212	(1)
State Court System	212	(2)
Federal Court System	214	(2)
APPENDIX B Reading and Researching Case Law	216	(6)
Analysis or ``Briefing'' of Case Law	216	(1)
Case Title and Citation	216	(1)
Court Type and Level	216	(1)
Facts	216	(1)
Issues	216	(1)
Court's Holding	217	(1)
Legal Doctrine	217	(1)
Significance of the Decision	217	(1)
Understanding Legal Citations	217	(2)
Parallel or Dual Citations	218	(1)
Explanation of Prior History	218	(1)
Introduction to Legal Research	219	(3)
Primary Sources	219	(1)
Secondary Sources	219	(1)
Finding Aids	219	(1)
Using Computers for Legal Research	220	(2)
APPENDIX C Glossary of Legal Terms	222	(8)
APPENDIX D Case List	230	(9)
Index	239

Excerpts

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