GPSOLO April/May 2008
Representing School Districts in the Area of Special Education
When representing school districts in the area of special education, a lawyer’s primary touchstone is the Individuals with Disabilities Education Act (IDEA), the major federal statute authorizing funds for special education and related services for children with disabilities. The law was first enacted in 1975 as the Education of All Handicapped Children Act in response to increased awareness of the need to educate children with disabilities and to judicial decisions requiring that states provide an education for children with disabilities if they also provide an education for children without disabilities. Compliance with the IDEA is required if states are to receive federal funding for special education.
The substantive provisions of the IDEA have gradually changed through the years to address the educational needs of children who qualify for the provision of services, and since 1976 the regulations governing this area of law have evolved to more than 1,200 pages in length. In 2004 Congress passed major IDEA legislation (P.L. 108–446) that reauthorized and revised the law, and regulations were most recently revised in 2006. Clearly, there are plenty of potential pitfalls for the unwary in this area of the law.
Overview of the IDEA
The IDEA is intended to govern the provision of special education services in public schools to students from ages three to 22. Nearly two out of every ten children potentially qualify for receipt of special education services. The number of children receiving special education services has grown so substantially that colleges of education and universities across the country have added or modified programs to train professionals to deal with the unique needs of these students. Student needs vary from occasional monitoring services provided by a special education staff person to a full day of services by a variety of special education staff.
The IDEA sets out specific definitions in the substantive law and corresponding regulations of what constitutes a disability under the act. It then goes on to provide specific procedural safeguards for the development of an Individualized Education Program (IEP) for each student who qualifies for special education services. This includes what may be considered when determining whether a student qualifies for special education, who may make that determination, and what that IEP should look like during the next 12 months. Every situation presents unique circumstances that can lead to differing interpretations of the act.
The IDEA’s detailed due process provisions specify that children with disabilities receive a “free appropriate public education” (FAPE). Much of the controversy under the act deals with the interpretation of FAPE.
As an example, P.L. 108–446 provides that a child with a disability may be placed in a private school by the local education agency (LEA) or state education agency (SEA) as a means of fulfilling the FAPE requirement for the child; in this case, the cost is paid for by the LEA. A child with a disability may also be unilaterally placed in a private school by his or her parents. In the latter situation, the cost of the private school placement is not paid by the LEA unless a hearing officer or a court makes certain findings. IDEA does require some services for children in private schools, however, even if they are unilaterally placed there by their parents. Exactly what these services are or should be has been a contentious subject for many years. The 1997 reauthorization of IDEA expanded the private school provisions, and the 2004 reauthorization includes several changes to the provisions relating to children who are placed in private school by their parents. The provisions relating to children placed in private schools by public agencies were not changed. Obviously, these provisions can lead to a great deal of very contentious debate over what LEAs are required to provide under IDEA.
For students who qualify under the IDEA, services may include speech therapy, physical therapy, occupational therapy, recreational therapy, behavioral therapy, psychological services, and involvement of social workers, audiologists, and educational assistants, along with teaching staff. Each of these service areas has specific regulations governing the provision of services to students. In addition, there are specific regulations for determining how much special education services a student will receive.Regulations governing how the student will be evaluated and disciplined and how he or she will graduate are also set out in the act. Each of these areas is a potential legal challenge, and what once constituted less than 10 percent of my practice now takes up virtually all of my time—plus that of other lawyers in my firm.
Although much of the basic structure of IDEA has been retained, P.L. 108–446 made a number of significant changes. Among these are the definition of “highly qualified” teachers, who are now required in special education classrooms; calculation of maximum state grants; funding for high–need children with disabilities; revised state performance goals and requirements for children’s participation in state and local assessments; changes in the private school provisions; exceptions to certain financial requirements; changes in procedural safeguards; and changes in compliance monitoring to focus on student performance.
P.L. 108–446 added provisions relating to homeless children, adding a two–year statute of limitations for the filing of a complaint and a two–year statute of limitations regarding requests for a hearing, adding additional requirements for hearing officers, changing the mediation provision, and specifically allowing the local educational agency, not just the parents, to file for a due process hearing. P.L. 108–446 also added the requirement of a “resolution session.” This session is a preliminary meeting of the parents, the LEA, and the IEP team held within 15 days of receiving the parents’ complaint. It was hoped that these sessions would resolve disputes prior to the more adversarial due process hearing.
Another major change in the act is found in the language regarding “manifestation” determinations. The 2004 reauthorization provides that, within ten days of a decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and appropriate members of the IEP team shall review all relevant information in the student’s file, including the IEP, teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by or had a direct and substantial relationship to the child’s disability (a “manifestation” of the disability) or if the conduct in question was the direct result of the LEA’s failure to implement the IEP. If the LEA, the parent, and relevant members of the IEP team determine that the conduct in question was caused by or had a direct and substantial relationship to the child’s disability or if the conduct in question was the direct result of the LEA’s failure to implement the IEP, the conduct is determined to be a manifestation of the child’s disability. Except for situations involving weapons, drugs, or serious bodily injury, when the conduct is a manifestation of the disability, the child shall return to the placement from which he or she was removed unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
When the determination is that the behavior is not a manifestation of the student’s disability, the LEA may discipline the student in the same fashion as it would those students who do not qualify for special education services. If the discipline is removal for more than ten cumulative days in a school year, the LEA must continue to provide the student with educational services, although they may be in a different setting.
Representing School Districts
Lawyers representing school districts in the area of special education benefit from having a strong relationship with a school district’s superintendent and its special education director. The special education director is generally the one who will call with questions, both about overall district educational practices and about specific programs for individual students. Most often, the questions seek legal counseling rather than an interpretation of legal precedent. A frequent question is, “What do I do with this student now that I have exhausted all of my resources?” Legal counsel must help implement preventive measures to ensure that school personnel and students are able to continue focusing on education rather than litigation.
As noted above, it is usually the definition and implementation of “free appropriate public education” that causes the most contention between school districts and parents. Every parent wants their child to have the best possible education. Unfortunately, that is not what is required by the law nor funded by the federal government. Most school districts, however, continue to strive to provide students with more than merely an adequate education.
Developing creative solutions is one of the major tasks for lawyers representing school districts. This is particularly true in states with a smaller population and fewer resources available in each district. Finding unique uses of school personnel and community resources within the regulations governing special education services is crucial. Schools must train several persons within a district to be the local experts in particular areas. This allows the district to meet the educational needs of students with unique demands.
Lawyers must also assist schools in preparing for meetings with parents, especially when the relationship has become strained. Lawyers can help school personnel identify the key issues and develop resolutions to those issues before the meeting. I always advise schools to create a meeting agenda to keep the participants focused on the relevant and unresolved issues. It is important for counsel to help school administrators understand their role in providing special education services to students; if they understand the role they play in making decisions and ensuring compliance of school staff, this may reduce the strain that can exist between the general education staff and the special education staff.
Practitioners must caution school districts against attempting to circumvent the legal requirements governing those who must attend IEP team meetings. The 2004 reauthorization language requires attendance by not less than one regular education teacher and not less than one special education teacher.
It is helpful for practitioners to carry a copy of the state and federal regulations and be familiar with (and even tab) those areas most often challenged by parents. A lawyer practicing in this field should read all the materials available, including those that are part of the educators’ realm. This gives the lawyer insight into the educators’ world and provides the knowledge needed to assist them in carrying out their important responsibility of educating children.
Jacquelyn Archuleta-Staehlin is a partner in the law firm of Cuddy, Kennedy, Albetta, Ives and Archuleta-Staehlin, LLP, in Santa Fe, New Mexico, where she concentrates in the area of special education. She may be reached at firstname.lastname@example.org.