Special Education and the Law
Understanding IDEA helps students get the best education possible
A Teacher Needs Help
Mid-America Middle School, Hometown U.S.A. Ms. Krabtree, who teaches 7th grade, has just started her third period Science class. Third period is the worst class for Ms. Krabtree because Barry is in it. Today, Barry decides he’s going to continue his pattern of blurting out nonsensical words to disrupt the class. Barry happens to sit in the back because Ms. Krabtree doesn’t want him anywhere near her. After today’s outburst, Ms. Krabtree finally decides she has had enough and sends him to the office with a referral. Bart goes down to the office and comes back with a note. The note is from principal Skinner. Ms. Krabtree reads it. “We can’t have him missing class. Did you check his IEP and 504? There needs to be more documentation here. Did you make the required modifications before you sent him to me? “ Ms. Krabtree is livid. Unfortunately for her, Ms. Krabtree didn’t even look at Bart’s file to see what modifications she was supposed to make. “Who has time for any of that anyway? Someone else should handle THOSE kids”
Although the names in the preceding scenario are fictitious, the events in are all too real. Every day, thousands of teachers fail to follow the criteria set forth for particular students in their classes who have special needs and then get frustrated, some to the point where they are ready to leave the profession because they (teachers) feel that they are not getting any support.
Inclusion of students with exceptionalities in regular education classrooms necessitates a thorough understanding of I.D.E.A., the Individuals with Disabilities in Education Act, along with benchmark cases that illustrate I.D.E.A.'s impact and/or shed light on I.D.E.A.'s pre existing philosophy.
Almost any teacher would readily admit that one challenge of teaching students with special needs is how to get students with a myriad of exceptionalities to achieve. Along with that challenge, in order to be successful, it is essential for teachers to understand the law. Specifically, teachers must be fully aware of and comprehend a prevailing law that has a very significant impact on inclusion, which is the Individuals with Disabilities in Education Act a.k.a. I.D.E.A.
Inclusion and Confusion
Inclusion is defined as an individual philosophy, which takes children with exceptionalities and mixes or "includes" them with the regular education population. Over the years, in the United States, inclusion has had varying degrees of success. Moreover, these "varying degrees" have generated countless lawsuits, written and rewritten laws, and drastically altered public policy as it is applied to education.
Several scholars have chimed in on the notion of inclusion. "The theory and practice of inclusion had gone beyond national policies on inclusion despite the lack of research evidence about its effectiveness" is what Hornby argues in Support for Learning 1992 vol. 7, 130 - 134 "Integration of children with special education needs" Inclusion or delusion can one size fit all?) Kaufman and Hallahan have argued "Widespread adoption of inclusive models could lead to a deterioration in the education provided for many children with SEN (special education needs) as well as the demise of the field of education itself.
Alexander, Kern and Alexander M. David American Public School Law pp. 439-440
 Hornby Inclusion or delusion can one size fit all? Support for Learning 1992 vol. 7, 130 - 134
Inclusion and its History
Given that life does not occur in a vacuum, it’s important to take a brief look at the history of inclusion in the U.S. within a legal context.
Historically, it is clear that students with exceptionalities get shorted (pg. 438) from the 1940's through the 1960s; several states gave money to school districts. These efforts did not even begin to address the needs of children with exceptionalities, which increased dramatically, particularly during and directly after the administration of Gerald Ford. This was the time for the beginning of critical legislation with regard to special education. One such key piece of legislation was enacted in 1975, the Education for All Handicapped Children Act.
Signed in 1975, amended in 1978 and then made part of IDEA (Individuals with Disabilities in Education Act). Public Law 94-142, the Education for All Handicapped Children Act was made law. According to EAHCP, "every child with a disability is entitled to a free and appropriate public education, a.k.a. FAPE. In 1990, it was determined that EAHCA needed revision. This revision became known as I.D.E.A. or Individuals with Disabilities in Education Act, Public Law 101 - 476, P.L. 105 - 17. Since then, Idea has been revised and amendments were made to it in 1997. Furthermore, I.D.E.A. also had changes to it in 2004. In order to see how I.D.E.A. effects inclusion, one must first adequately examine it.
I.D.E.A. is paramount to understand simply because it governs all special education services in the United States. Identification, eligibility, appropriate education, least restrictive environment and due process procedures are all addressed in I.D.E.A. More specifically, there are 13 categories for exceptionalities including everything from autism to orthopedic disabilities and other impairments.
 Alexander, Kern and Alexander M. David American Public School Law pp445-449
IDEA and 504: What's the Difference?
To further illustrate the significance of I.D.E.A., we can compare and contrast it to Section 504 of the Rehabilitation Act of 1973, primarily because they both are referred to so much in special education and understanding Section 504 helps one understand I.D.E.A. Section 504 does refer to those people who meet the criteria for a "handicap" 504. An important distinction between the two is that 504 does not require that students need special education to qualify.
The reason that 504 is so critical for teachers and administrators is that it affects everyday activities. That is because schools across the country are serving more and more students with exceptionalities. For example, with section 504, there must be impartial hearings for parents who disagree with identification, evaluation or placement of the student. There is no consent required for a 504 plan. 504s require that parents have an opportunity to participate and be represented by counsel. Other details are left to the discretion of the school. There are no "stay put" provisions, or those provisions that mandate that the student must "stay put" in the placement they are in until all disputes are resolved. Furthermore, there are no requirements of days notice prior to change of placement and the office of Civil Rights and the U.S. Department of Education enforces Section 504. I.D.E.A. on the other hand has the following characteristics. Under I.D.E.A., an impartial hearing for parents who disagree with the identification, evaluation or placement of the student is required. I.D.E.A. requires written consent, delineates specific procedures, and hearing officers are appointed by impartial appointee. Unlike 504, I.D.E.A. provides a "stay put" provision until all proceedings are resolved. That literally means that the student is to "stay put" in his or her placement until all disputes are settled. Parents must receive 10 days notice prior to any change in placement under I.D.E.A. I.D.E.A. is enforced by the U.S. Department of Education. Another important distinction between I.D.E.A. and 504 is that I.D.E.A. provides funding, 504 does not.
 deBettencourt, Laurie U. "Understanding the Differences Between IDEA and Section 504" Teaching Exceptional Children, Vol. 34, No. 3 pp. 16-23
Keeping the Big IDEA in Mind
How does I.D.E.A. impact inclusion? Simply with regard to teachers, here are a few examples. There should be a school-based chairperson for I.D.E.A. Teachers should know who that person is. Teachers should also know what school district forms are used to document the process of identifying and serving students under I.D.E.A. and 504 and how to use those forms correctly. Documentation, which can be the bane of a teacher's existence, must include records of students' inability to stay on task, emotional outbursts, and completed work should be kept on a daily basis. Copies of Individualized Education Programs (I.E.P.s) and completed forms should be available for review by the teacher on a regular basis. A record of all telephone calls and meetings with parents need to be kept in a secure place. School and district requirements need to be kept for section 504 and I.D.E.A. (Keep in mind that all of this is supposed to take place on top of the fact that teachers should be teaching.) Most importantly, teachers should keep all materials confidential, including the names of children. In addition, due to the fact that there are more children with Attention Deficit Disorder and various medical conditions, (i.e. pg. 22 2nd column) teachers are responsible for knowing if the children qualify for 504 or I.D.E.A. services. There is also the issue of students who become temporarily disabled and what services those students may or may not qualify for. To add to the responsibilities and in many cases, confusion, students who may no longer qualify for I.D.E.A. may still qualify under 504.
It isn't just teachers who feel that they are burdened with documentation and regulations when it comes to special education, which in turn hinders student achievement. Former U.S. Department of Education Assistant Secretary Robert Pasternack shares this opinion for Special Education, who stated that he hears from parents that tell him their kids aren't progressing in the classrooms. The classroom in this case is one that includes mostly non-special education students. "We have created a process that focuses on rules and regulations and has lost sight of the real end game - instruction of children," Pasternack said. As a result of including special education students with general education students, Pasternack went on to say that teachers simply aren't prepared for what they see in the classroom. It is important to note that Pasternack is not calling for an end to inclusion. In fact, Pasternack (Special Ed. Report page 9 December 2002) argues for addressing special education so that students "within the context of general do not become "instructional casualties".
In addition, the U.S. Department of Education has begun to disaggregate achievement data of students with exceptionalities, to see whether or not those students (with exceptionalities) are achieving academically.
If student achievement is the issue, does I.D.E.A. help or hinder that process? For example, as Ms. Krabtree found out, disciplining a student with an exceptionality can be problematic; thereby causing a chain reaction that gets in the way of student achievement. In March 2002, (Spec. Ed. report pg. 9 December 2002) a bi partisan Senate panel began the reauthorization process for I.D.E.A. One of the major issues was discipline. Assistant Secretary Pasternack testified before the committee stating that teachers tell him that their hands are tied with regard to disciplining special education students.
It's not as if I.D.E.A. doesn't have disciplinary provisions already, quite to the contrary. (Safe and Effective Schools for all, putting into practice…1997 idea) In fact, I.D.E.A. addresses the needs of school personnel as they relate to positive intervention strategies to deal with student behavior. I.D.E.A. is very specific with regard to discipline. When undesirable behaviors are displayed, I.D.E.A. lays out the following plan. "The team (teachers, special ed support psychologists, etc.,) must explore the need for strategies and support systems to address any behavior that may impede the learning of the child with the disability or the learning of others" ( 614(d) (3) (B) (i) ) and "In response to certain disciplinary actions by school personnel, the Individualized Education Plan (or I.E.P.) team within 10 days, must meet to formulate a functional behavioral assessment or FBA plan to collect data for developing a behavioral intervention. If a behavioral intervention plan already exists, the team must review and revise it as necessary, to ensure that it addresses the behavior upon which disciplinary action is predicated. (615(k)(1)(B) ) 
Utilizing I.D.E.A.'s strategies for positive intervention, the Virginia Department of Education came up with a program which is "pupil specific" and implemented at the school level for behavioral intervention. The Virginia program mentioned here has been called a success because it offers a wide variety of interventions based on behavior and presupposing the conditions under which students perform best, which according to their plan, is when they (students) are secure, respected, classroom level academic and behavioral supports are available, early intervention for behavior, appropriate collaborative relationship of administrators and faculty, understanding and agreement of teaching and learning process and positive relationships between school and home. As Gable et.al put it "By introducing a range of preventive/intervention options aligned with the nature and complexity of the problem, schools are becoming safer, more effective learning environments for all students. "
As one may well imagine, the interpretation /appropriate implementation of I.D.E.A. has led to a substantial amount of case law related to the topic. Now that we have analyzed There have been several cases considered cornerstone in their relevancy to I.D.E.A., starting with Brown v. Board of Education Topeka Kansas. Although it is considered a landmark legal case from what is considered a more traditional civil rights case, Brown v. Board of Education can be an important precursor to I.D.E.A. At issue was the fact that separate but equal facilities are inherently unequal. As Alexander and Alexander noted "Brown v. Board of Education set a precedent for the extension of educational access to all children, including students with exceptionalities."
Almost 20 years later, Mills v. Board of Education of the District of Columbia raised the issue of procedural due process being required to reassign students with exceptionalities. In that case, the court found that "no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a rule, policy, or practice of the Board of Education of the District of Columbia". The court also noted "The District of Columbia shall provide to each child of school age a free and suitable publicly supported education regardless of the degree of the child's mental, physical or emotional disability or impairment" Finally, a third case that one may argue is intimately tied to I.D.E.A. is Oberti v. board of Education in which had at issue that the burden of proving compliance with mainstreaming requirement is borne by the school district. In that particular case, the U.S. Court of Appeals Third Circuit 1993. 995 F 2d 1204 reversed the lower courts decision in its finding, stating that " …when IDEA's mainstreaming requirement is specifically at issue, it is appropriate to place the burden of providing compliance with IDEA on the school"
Inclusion is not going away. Neither are students with exceptionalities. Through understanding and following the criteria set forth in IDEA, Ms. Krabtree and everyone else like her will know exactly what to do the next time Bart displays inappropriate behavior which is of course, the big idea(pun intended). She has to. Bart deserves no less. Neither does any other student.
It's the law.
 "Pasternack: IDEA Regulations Hamper Kid's Education" School Law News Feb. 1, 2002 p. 5
 Special Ed. Report page 9 December 2002
" Gable, Robert A. et. al., Safe and Effective Schooling for All Students: Putting Into Practice the Disciplinary Provisions of th 1997 Idea " Preventing School Failure Winter 2003
 Alexander, Kern and Alexander M. David American Public School Law pp445-465
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