1. Litigation & Legislation Special
Education: An Overview
EDSP 501
Sherwood Best, Ph.D.

2. Important Principles in
Constitutional Amendments
Relating to Special Education Law
• The Fifth Amendment: Criminal and Due Process
ä Access to courts
ä Right of appeal
• The Eighth Amendment: Punishment for Crimes
ä Cruel and unusual punishment
• The Tenth Amendment: Powers Reserved to the
States
ä State jurisdiction over state matters
• The Fourteenth Amendment: Civil Rights of
Citizens
ä Equal protection under the law

3. Parents’ Due Process Rights
• When the disputing a decision regarding their child’s
identification, evaluation, placement or programming, parents
have a right to:
ä Present evidence and call witnesses
ä Be represented by a person of their choosing
ä Impartial panel or hearing officer
ä Expect action in a reasonable period of time
ä Have the hearing at a time and place convenient, and with
advance notice
ä Have access to their child’s records
ä Have translations of notices and proceedings as needed
ä Appeal to a higher level

4. Early Cases
• Right to education or treatment, prohibition of cruel and
unusual punishment, reinforcement of due process and
equal protection, responsibility of states to allocate
funds.
• Significant Cases:
ä Brown v. Board of Education of Topeka [347 U.S. 483
(1954)]
ä Pennsylvania Association of Retarded Citizens
(PARC) et al. v. Commonwealth of Pennsylvania [343
F. Supp 279 (1972)]
ä Peter Mills et al. v. Board of Education of the District
of Columbia et al [348 F. Supp 866 (1972)]
ä Wyatt v. Stickney (Alabama,1972)

5. Important Litigation in Special
Education
• Eligibility, assessment and the right to an appropriate
placement
• Significant Cases:
ä Diana v. State Board of Education (California, 1970)
ä Larry P. et al v. Wilson Riles et al [495 F. Supp. 926
(1979)]
ä People in Action in Special Education (PASE) v.
Hannon (Illinois, 1980)
ä Lau v. Nichols (California, 1974)
ä Timothy W. v. Rochester School District [875 F. 2nd
954 (1988)]

6. Important Litigation in Special
Education
• Right to an appropriate education
• Significant Cases:
ä Board of Education of the Hendrick
Hudson School v. Amy Rowley [485 U.S.
176 (1982)]
ä Board of Education, Sacramento City
School District v. Rachel Holland [786
F.Supp. 874 (E. D.Cal, 1992)]

7. Important Litigation in Special
Education
• Special Issues
• Significant Cases:
ä Henri and Mary Tatro et al. v. The State of
Texas et al.[82L Ed. 2d. 664 (1984)]
ä Honig v. John Doe [484 U.S. 395]
ä Chanda Smith v. Los Angeles Unified
School District (California, 1996)

8. Outcomes of the Chanda Smith
Case
• As a result of the consultants’ investigations, a series of
recommendations were made, to which the district agreed:
ä Administration and special education restructuring
ä Revision of special education policy and practices
ä SST at every site
ä Centralized school records
ä Parental support
ä Program of staff development
ä Implementation of LRE
ä Adequate, fair, and appropriate facilities and services
ä District compliance with special education law

9. Key Legislation
• Most Federal & State right to education laws
are based on prior litigation (e.g. PARC,
Mills) giving educational rights to individuals
with disabilities.
• The two earlier and most prominent pieces of
legislation include: Section 504 of P. L. 93-112
and P. L. 94-142 (the Education for All
Handicapped Children Act)

10. Section 504 of PL 93-112 (1973)
• Section 504 was enacted as part of the Vocational
Rehabilitation Act of 1973.
• Section 504 is a counterpart to Civil Rights Act of
1964 (prohibiting discrimination based on race or
national origin) and Title IX of the Education
amendments of 1972 (prohibiting discrimination
based on gender).
• Ensures children w/ disabilities have equal access to
education
• Section 504 does not require an IEP to meet child’s
unique needs & provide an educational benefit

11. Section 504
“No otherwise qualified handicapped
individual in the United States…. Shall,
solely by reason of his (or her)
handicap, be excluded from the
participation in, be denied the benefits
of, or be subjected to discrimination
under any program or activity receiving
federal financial assistance.”

12. 504 Application to Education
• Prohibits discrimination against America’s
individuals w/ disabilities; therefore students in
schools w/ disabilities.
• Requires physical access in buildings for
individuals w/ disabilities, including schools.
• Students who do not qualify under IDEA
definitions, may qualify under Section 504 if
significant learning problems exist that affect
school performance.
• Disability definition under 504 broader than IDEA
• Must have disability that limits a major life activity

13. Major Life Activities Defined
• Major life activities include: “caring for one’s self, performing
manual tasks, walking, seeing, hearing, breathing, working, &
learning”*
• 504 protects those who no longer have a disability
ä Cannot discriminate against someone because they once
had disability
• Protects students incorrectly classified as disabled
• Students coved by IDEA are covered by 504
• Some students w/ disabilities not covered by IDEA may be
covered by Section 504
• Such disabilities may include Tourette’s syndrome, asthma,
diabetes, arthritis, allergies, AIDS, those w/ alcohol or drug
problems (if not currently engaged in illegal drug use).
• ADHD & Tourette’s syndrome are now specifically identified in
PL 108-446 under Health Impairments
* Not intended to be exhaustive

14. Reasonable Accommodations
• Reasonable accommodations a key concept
ä Make modifications to existing environment to
eliminate barriers
ä Accommodations required in employment but not
specified in schools
• Courts & OCR have held that reasonable
accommodations are those that do not impose
excessive financial & administrative burdens or
require fundamental alterations in the program
• Accommodations, including changing way things are
usually done to consider disability & student needs
(e.g. rule, policy & practice modifications, removing
architectural & or communication barriers, providing
aids, services, assistive technology.

15. Implications of PL 93-112 &
Section 504
• Section 504 prohibits exclusion from programs solely
on the basis of one’s disability.
• Like IDEA, Section 504 requires free & appropriate
public education to qualified students
• Prohibits denial of access or services for students w/
disabilities
• Prohibits lower quality benefits for students w/
disabilities
• Prohibits different or separated benefits or services
unless necessary to provide benefits equal to non-
disabled students

16. PL 94-142
• 1975 Congress passed P.L. 94-142 naming it
the Education for All Handicapped Children’s
Act (EAHCA)
• Permanently changed the face of Education in
the United States
• Reauthorized & amended several times
• Most recent reauthorization was 2004
• Renamed the Individuals with Disabilities
Education Act (IDEA) in 1990, then the
Individuals with Disabilities Education
Improvement Act (IDEIA) in 2004.

17. Principle Provisions of Special
Education Law
From P.L. 94-142 to P.L. 105-17
• Free appropriate public education - FAPE
• Special education and related services
• Least restrictive environment - LRE
• Zero reject
• Non-discriminatory assessment
• Parents’ rights and procedural safeguards

18. Zero Reject
• No exclusion--no matter how severe the
disability
• All students w/ disabilities from 0 to 21 are
located & served
• Each SEA responsible for locating, identifying,
and evaluating all children, birth to age 21,
residing in state with disabilities or suspected of
having disabilities.
• Requirement is called “Child Find.”

19. Non-Discriminatory
Assessment
• Test must be fair
• In child’s native language
• Not biased culturally/racially
• Use variety of measures
• Assessments must be valid & reliable
• Administered by trained professionals
• Parents must consent to the evaluation process
• These provisions referred to as “protection in
evaluation procedures.”

20. FAPE
• Entitlement to special education & related
services
ä Provided at public expense
ä Meet state standards
• Provided according to an IEP
ä Appropriately developed & implemented
• Reasonable opportunity to learn
• Meaningful benefit

21. FAPE (con’t)
• IEP team must discuss pupil’s communication
needs in terms of providing (Calif. Ed. Code)
ä Direct & ongoing language access to
teachers/specialists proficient in pupil’s
primary language mode
ä Services to ensure communication
accessible
• academic instruction
• school services
• extracurricular activities

22. Mandated Components of IEP
• Statement of child’s present levels of
education performance
• Statement of measurable annual goals
• Statement of special education & related
services
• Explanation of extent, if any, to which child
will not participate w/ non-disabled children in
regular class & activities

23. Mandated IEP Components
• Modifications in administration of state or
district-wide assessments of student
achievement needed to participate or why
assessments not appropriate & how child will
be assessed
• Projected date of beginning of services and
modification, anticipated frequency, location,
duration of services & modifications
• How progress toward annual goal measured,
& how parents informed

24. LRE
• Educated & participate w/ children without
disabilities to the maximum extent appropriate
• In schools & classes would attend if not
disabled
• IEP must provide justification for segregation
• Continuum of placement options available
• Removal from reg. ed. environment
ä Occurs only if education in regular
classroom can’t occur satisfactorily w/ the
use of supplementary aids & services

25. Procedural Safeguards & Due
Process
• Procedural Safeguards • Due Process
• Parental participation • Use appeal procedures
• Prior written notice when disagree
• Consent to assessment • Informed of free/low
& placement cost legal services
• To examine/obtain • Represented by legal
child’s records counsel
• Independent evaluation • Advised by experts

26. Parent Participation
• Schools must collaborate w/ parents & students w/
disabilities to design and implement special education
services
• Parent’s (whenever appropriate, student’s) input &
wishes must be considered in IEP goals, objectives,
related service needs, & placement decisions
• Parental consent is required for evaluations & special
education placement decisions
• In disagreements on identification, evaluation,
placement, or special education or related services,
parents may request due process hearing
• State must offer parents opportunity to resolve matter
through third party mediation before hearing
• If parents prevail, right to attorney fees

27. PL 99-457
(Amendments to EHA in 1986)
• Infants and Toddlers with Disabilities Act (1986)
ä Extended special education rights to 3 - 5 year
olds
ä Established new federal discretionary program
for states to provide services to 0-3 years who
qualify with:
• Condition resulting in developmental delays
• Developmental delays
• At risk for developmental delay

28. Major Components of PL 99-457
• Services to all eligible infants & toddlers & their families
• Comprehensive multidisciplinary evaluation of all children & identification of
family needs in assisting child’s development
• IFSP every 6 months for 0-3 infants & toddlers, that includes service
coordination
• Services provided, to the maximum extent appropriate, in natural
environments- Preferred environment- similare to LRE in the school system
• (where there would be children without disabilities) Ex: Jamboree, Mommy and me, park, Home, Day Care
• It makes it hard to network with other families/parents
• limited to home services
• Procedural safeguards similar to Part B of 94-142
• all the same for older children.
• Policies & procedures to ensure transitions from Part C to preschool or other
appropriate services
• Process of transition to School setting with any special education programs, placement or assistance.
• Or if they made sufficient progress and might not need additional services
• Regional Center might keep providing services up until adulthood.
• SSI-Supplemental Social Security if not worked
• SSDI- If worked
• If that person has grown and has become disabled after discharged from REgional Center. They are not eligible.

29. PL 101-476 (IDEA)
Amendments to PL 94-142 in 1990
• Person first language (i.e., “children, student, individual w/ a disability”)
• vs. Handicapped children, the handicapped, CP ‘suffer’, wheelchair bound?, bed bound (inappropriate language)
• Added students w/ autism & traumatic brain injury as separate disability
categories
• Up to 11 categories in the educational system (including SpecLearnDisabi). and added 2 more for politics, attracts media,
funding, families wanted to take the category of autism out of disability category.
• Added rehabilitation services & social work as related services
• OT, PT, that can be requested in the IEP. which would not be possible before 1990 through working with the school and
funded by school or programs such as medicare, medical. toileting, dressing, (non nursing/non educational in a medical
facility)
• Transition plan
ä Transition plan must be part of the Individual Family Service Plan
(IFSP) for every infant and toddler under IDEA.
ä Transition planning by age 16 for all students receiving sped and
related services under IDEA.
ä After school age? Department of Rehabilitation? For older kids, many went back home and sit without
services. This legislation identified the transition plan to begin and mandated at 16 with an IEP. Later
changed to 14, and changed back to 16, however some districts keep the age of 14.
ä ITP, Individual Transition Plan. to fulfill the federal legislation. State mandates we can do no less than what
the feds require. but may do more than require. such as begin ITP at age 14
ä

30. PL 105-17
(Amendments to IDEA in 1997)
• Reauthorized 101-476 by consolidating law from eight to
four parts & making additions:
ä Encouraged parents & educators to resolve
differences through non-adversarial mediation.
ä Transition begun at age 14 (assessment of transition
needs)
ä Added provisions governing problem behavior
(behavior manifestation review)
ä Restructured IEP & parent participation in IEP
process
ä Defined student participation in district- and state-
wide testing
ä Substantial emphasis on time spent by children w/
disabilities in general classroom- Mainstreaming
ä Changed funding formulas

31. Special Education Is…
• Instructional aids & services for all students with
disabilities
• Early childhood services for students w/
developmental disabilities, or at-risk, & their
families
• Provided birth to age 22
• Includes planning for transition to work &
independent living
• Mandated by P.L. 105-17
• All schools receiving federal funding must
provide services

32. Who Is Eligible?
• Must meet eligibility requirements for one or
more of 13 categories of disability
• Must be considered a child with a disability, as
defined by federal law:
IN GENERAL- The term ‘child with a disability’ means a child--
(i) with mental retardation, hearing impairments (including deafness),
speech or language impairments, visual impairments (including
blindness), serious emotional disturbance (hereinafter referred to as
emotional disturbance'), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning disabilities;
and
(ii) who, by reason thereof, needs special education and related
services.
P.L. 105-17, Section 602 (I) (3) (a)

33. Eligible Children
• A child who meets eligibility requirements for one or
more of the following categories may be served
under California special education law
• specific learning disability (LD)
• mental retardation (MR)
• speech and/or language impaired (LSH or SLH)
• emotional disturbance (ED or EBD)
• orthopedic impairment
• other health impairment (OHI)
• visual impairment
• deaf
• hard-of-hearing
• deaf-blind
• multiple disabilities
• autism
• traumatic brain injury

34. Note!!!
• These categories do not include gifted & talented
children.
• ADHD is not a learning disability or behavior disorder
• Children w/ attention deficit-hyperactivity disorder:
ä may be included in Other Health Impairment if
their disorder is considered acute and/or chronic
ä may also be served with a 504 plan
• EBD was previously known as serious emotional
disturbance (SED)

35. Designated Instructional Services
A California term, encompasses two Federal terms:
 Related Services
“Transportation and such developmental, corrective and other
supportive services as may be needed to assist a child with a
disability to benefit from special education, and includes the
early identification and assessment of disabling conditions in
children.”
 Supplemental Aids and Services
“Aids, services and other supports that are provided in regular
education classes and other education-related settings to
enable children with disabilities to be education with non-
disabled children to the maximum extent appropriate...”

36. Designated Instructional Services
• Audiology • Transportation
• Speech and Language • Augmentative or
Therapy Assistive Technology
• Adaptive P.E. • Nursing Services
• Physical Therapy • Transition Planning
• Occupational Therapy • Supplementary
• Counseling Materials

37. PL 101-336 of 1990 (ADA)
non educational legislation
• Passed because Section 504 was not
sufficient to end discrimination for adults w/
disabilities
• Guarantees access to all aspects of life-not
just those which are federally funded (as with
Section 504) to people w/ disabilities
• Supports & extends Sec. 504 by providing
adults w/ disabilities greater access to
employment & participation in everyday
activities

38. ADA (con’t)
• Civil rights protection to individuals w/ disabilities
similar to those provided to individuals based on
race, color, sex, national origin, age, and religion.
Also includes those with HIV and AIDS. Protects
those with record of disability
• Guarantees equal opportunity in public
accommodations, employment, transportation, state
and local government services, telecommunications
• Requires new or remodeled public accommodations
(e.g. hotels, stores, restaurants, banks, theaters) to
be accessible.
• Requires telephone companies to provide relay
services for individual w/ hearing & speech
impairments to use ordinary telephones.

39. ADA (con’t)
• Prohibits discrimination in all employment
practices: job application, hiring, firing,
advancement, compensation, training, etc.
• Employers w/ 15 or more employees covered by
ADA
• Must make reasonable accommodations
ä Reasonable accommodation- modification or adjustment to a job
or work environment enabling qualified applicant/employee w/
disability to participate in application process or perform job
functions
ä Includes adjustments to assure individual w/ disability has rights/
privileges equal to those employees with out disabilities

40. Examples of Reasonable
Accommodations
• Making existing facilities readily
accessible and useable (access to job
application, to perform essential functions to job such
as access to building, work site, needed equipment,
all facilities used by employees)
• Restructuring a job
• Modifying a work schedule
• Acquiring or modifying equipment
• Providing qualified readers or notetakers
• Modifying exams, training, or other
programs

41. Making Accommodations
• Accommodations usually triggered by requests
• Individual often suggests accommodations and
made on individual basis
• Unless disability impairs ability to know or
communicate need for accommodation,
employer usually does not need to make
accommodation unless requested
• If accommodation causes undue hardship,
employer suggests alternative accommodation
• Employer not required to make modifications
until needed and not in area not used for
employment purposes

42. ADA Public Accommodations
• Public accommodations for private entities, which
operate, place of public accommodations: e.g.
restaurants, hotels, theaters, doctor’s offices,
pharmacies, retail stores, museums, libraries, parks,
private schools, day care centers. Day care centers &
religious organizations are exempt.
• All new fixed route transit buses must be accessible &
supplementary para-transit services provided for those
who cannot utilize fix route services
• Telephone relay services required of deaf individuals
(TTD)
• Some tax credit may be available for businesses which
incur expenses in modifications.
• Accommodations not required if they will fundamentally
change nature of services provided

43. The Concept of Reasonable
• Key word the intent of ADA is “reasonable”
• Restaurants need not have Braille menus,
stores price tags in Braille, as long a
someone can read it for customers
• Barriers need not be removed unless readily
achievable & the cost within reason.
Resources are a factor.
• What may be required: ramping of few steps,
grab rails & bars, lowering of telephones

44. ADA Controversy
• Individuals with disabilities complain that the
law is not being implemented or enforced.
• Some small business owners claim that ADA
requires expensive accommodations that are
never used.