Chapter 10 Trial

1. Chapter 10 Rights of Students with Disabilities

2. Judicial Opinions Free appropriate public education (FAPE) Extended school year (ESY) Regression-recoupment dilemma Procedural safeguards Individualized education programs (IEP) Attention deficit hyperactivity disorder (ADD/ADHD) Least restrictive environment (LRE) Placement in private schools Related services Discipline and “stay put” provisions Compensatory education Attorney’s and expert’s fees Liability for reimbursement of parents

3. History Education for All Handicapped Children Act (EAHCA) – 1975 (PL 94-142) Amended: 1978, 1983, 1986, 1990, 1997, 2004 Individuals with Disabilities Education Act (IDEA) – 1990 IDEIA (“Improvement” added) – 2004 Brown v. Board of Education (1954): set the precedent for extension of educational access to all children, including those with disabilities

4. Education for All Handicapped Children Act (EAHCA) Provisions: A free appropriate public education (FAPE) An individualized education program (IEP) Special education services Related services Due process procedures Least restrictive environment (LRE) Ages 3-18

5. Education for All Handicapped Children Act (EAHCA)/ Individuals with Disabilities Education Act (IDEA) Amendments: Ages 3-21 (1980) Preschool included (1986) Birth to age 2 (1986) Receipt of attorney fees, if successful appeal (1986) Disabilities extended to include: head trauma and autism (1990) Transition services; age 16 and older (1990) Eligibility, evaluation, programming, private school placements, discipline, funding, attorney’s fees, dispute resolution, and procedural safeguards (1997)

6. Individuals with Disabilities Education Act (IDEA) Amendments: Funding, definitions for children with learning disabilities, dispute resolution procedures, disciplinary rules for children with disabilities, manifestation criteria (2004) Coordinate language with NCLB (e.g. “highly qualified” teacher, AYP) (2004)

7. Individuals with Disabilities Education Act (IDEA) IDEA Definition of Children with Disabilities: Mentally retarded Hard of hearing or deaf Speech and language impaired Visually handicapped or blind Seriously emotionally disturbed Orthopedically impaired Autism Traumatic brain injury Specific learning disabilities Otherwise health impaired

8. Free Appropriate Public Education (FAPE) Definitions: Provided at public expense and without charge Meet standards of state education agencies Include preschool, elementary and secondary education Services conform to IEP’s Appropriate – not defined by Congress but rather by judicial opinions. Mills v. Board of Education of District of Columbia (U.S. District Court, District of Columbia, 1972)

9. Individualized Education Program (IEP) Definition: “ … a written statement for each child with a disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities …” (Honig v. Doe, 1988)

10. Individualized Educational Program IDEA (1997)Requirements: Present level of performance Measurable annual goals Program modifications Participation in achievement assessments Evaluation procedures related to annual goals Periodic report cards

11. Board of Education of Hendrick Hudson Central School District v. Rowley (U.S. Supreme Court, 1982) Timothy W. v. Rochester School District (U.S. Court of Appeals, First Circuit, 1989)

12. Extended School Year (ESY) Must be expressly stated in a child’s IEP Question: What are the determining standards? Answer: Regression-Recoupment Regression – gradual loss of memories and acquired skills; reversion to an earlier mental or behavioral level Recoupment - to make up (recoup) for something lost

13. Least Restrictive Environment (LRE) “To the maximum extent appropriate, children with disabilities, … are to be educated with children who are not disabled …only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

14. Mainstreaming Preferred term: Inclusion (IEP: Requires a statement of the child will not participate with non-disabled children.) Four-Factor Analysis: Educational benefits of placement in a regular classroom Nonacademic benefits of placement Effect the student has on the teacher and other children Cost

15. Obertiex rel. Oberti v. Board of Education of Clementon School District (U.S. Court of Appeals, Third Circuit, 1993) Beth v. Van Clay (U.S. Court of Appeals, Seventh Circuit, 2002)

16. Attention Deficit Hyperactivity Disorder Definition: A behavioral disorder most commonly defined by the criteria of inattention, hyperactivity, and marked impulsiveness. Eligibility for IDEA Services: Other Health Impaired Specific Learning Disability Seriously Emotionally Disturbed Section 504

17. Alvin Independent School District v. A.D. (U.S. Court of Appeals, Fifth Circuit, 2007)

18. Private School Placement & Services Special education and related services to meet the needs of disabled children in private schools must be provided by the local education agency Service to private schools must be “comparable” Placement in a private school must be approved before funding is required Foley v. Special School District of St. Louis County (U.S. Court of Appeals, Eighth Circuit, 1998)

19. Related Services “ … means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services) … to benefit from special education.” Irving Independent School District v. Tatro (U.S. Supreme Court, 1984)

20. Discipline Misconduct not related to disability - OR – an alternative or more-restricted placement needs to be considered Suspension – ten (10) days maximum or considered a change in placement “Stay-Put” Provision – child remains in current educational placement until an alternative placement can be determined – UNLESS – weapon possession or illegal drugs (alternative setting for not more than 45 days)

21. Discipline Manifestation Determination – meeting to decide if the inappropriate behavior of the child is related to his/her disability Even if the discipline is not a manifestation of a child’s disability and discipline consequences are imposed (e.g. suspension or expulsion), services may not be terminated Honig v. Doe (U.S. Supreme Court, 1988)

22. Other Issues Compensatory Education – services beyond age 21 if courts determine deprivation of FAPE Attorney’s and Expert’s Fees – may be awarded by the courts to parents who prevail in lawsuits

23. Rehabilitation Act of 1973, Section 504 “No otherwise qualified handicapped individual … shall, solely by reason of his 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.”

24. Differences: IDEA vs. Section 504 IDEA – very specific rules and procedures in providing FAPE Section 504 – prohibits discrimination against all persons with disabilities regardless of whether they require educational services or not Section 504 – applies only to agencies receiving federal financing; IDEA – applies to state and local agencies receiving funds under IDEA (state and/or federal)

25. Section 504 and AIDS Child with AIDS is not considered handicapped as defined in IDEA unless the child needs special education May be considered “other health impaired” Martinez v. School Board of Hillsborough County (U.S. Court of Appeals, Eleventh Circuit, 1988)