Consider three hypothetical students in public school. Alejandro is age ten, uses a wheelchair due to cerebral palsy, and struggles academically. Ben, age fifteen, is a popular and gregarious teen, who has been identified with dyslexia and reads with the help of audiobooks. Caitlin, who is seven, taught herself to read at a toddler, scores off the charts on IQ tests, and is frequently bored in class. She also has a life-threatening peanut allergy.
Based on these limited facts, the three students seem to have little in common. However, their profiles share a common theme. Each child has unique needs that are different from the typical student. These kids need something different. They likely all qualify for an educational plan in public school to address these needs.
The purpose of this article is to give you a broad overview of educational plans that public-school students have in the United States and the laws that govern these plans. This will give you basic, foundational knowledge that will help you think about how to advise families with a child who has unique needs in school.
Keep in mind, however, that this is not a comprehensive article on educational plans or special education. Many attorneys and nonlegal professionals spend a lifetime focused on these issues. Do your own research for the unique circumstances of any family you serve, and, when appropriate, consult with an education law expert to get more specific answers.
State and Federal Law
To understand educational plans, it helps to understand how education policy is set in the United States. Traditionally, education policy and law is set at the local level. The reasons for this are beyond the scope of this article, but note that education is not specifically listed as a federal power in the Constitution, and, per the Tenth Amendment, all powers not granted to the federal government, are reserved to the states. Since the first U.S. public school was founded in 1635 in Boston, Massachusetts, states and local school districts have decided what and how kids learn. They decide what books they read, what math they need to know, when they attend school, and so on. Today, states and local school districts still decide much of education policy. Sometimes, states act in concert. The Common Core State Standards, for example, represent a state-led initiative, supported by the federal government, to revise academic standards across the country.
The federal government first dipped its toes into education policy in the eighteenth century with actions such as land grants to states for schools. However, it was only during and after World War II that the federal government started to take major action on education policy.
The G.I. bill, passed in 1944, set the stage for waves of veterans to attend college in post-War decades. The Supreme Court decided Brown v. Board of Education in 1954, declaring segregated schools unconstitutional. The Cold War space race motivated politicians to pass laws to encourage the teaching of science and math.
Arguably the most impactful federal education policy action protected civil rights; it focused on helping people of color and the disadvantaged. In the 1960s and 1970s, Congress passed three major laws that set the stage for the educational plans we now see in schools.
- The Elementary and Secondary Education Act, passed in 1965, is a wide-ranging law that funds and provides support for disadvantaged students and schools. This law was reauthorized in 2002 as the No Child Left Behind Act and again in 2015 as the Every Students Succeeds Act.
- Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against students with disabilities in schools and other kinds of programs that receive federal funding. This law is a counterpart of the American With Disabilities Act, which prohibits disability discrimination in public accommodations.
- The Individuals with Disabilities Education Act, originally passed in 1975 as the Education for All Handicapped Children Act, requires states to serve the educational needs unique to students with disabilities.
Why is this background important? While educational plans are often based in federal law, many of the requirements and details of these plans are left to state law and even to local school district policy. Without the context of both state and federal law, we are bound to miss important details.
Types of Educational Plans
Back to our three students: Alejandro, Ben, and Caitlin. What types of educational plans might each of these children have and why? There are three main ones you will see in practice: the Individualized Education Program, Section 504 Plan, and Gifted or Exceptional Student Plan. Two less-common kinds of plans are the Individualized Family Service Plan and the Private School Service Plan.
Individualized Educational Program
The Individualized Education Program (or IEP) is the most common educational plan that exists in public schools. Its requirements are laid out in IDEA, one of the major laws passed in the post-War era. Roughly 7 million children, ages three to twenty-one, have IEPs. This number includes young children who are preparing to attend school. Around fourteen percent of public school students in the United States have IEPs. See Children and Youth With Disabilities, Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci. (last updated May 2019), https://nces.ed.gov/programs/coe/indicator_cgg.asp.
An IEP is an educational plan that provides special education and related services that are individually tailored to meet a child’s unique needs. To qualify, a child must have a disability in one of thirteen categories in federal law. The disability must “adversely affect” the child’s education. These categories are very specific; they are autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment (including blindness). See Individuals With Disabilities Education Act, 20 U.S.C. § 1401(3) (2004).
IEPs have a standard and consistent format in public schools because the federal law governing them, IDEA, is very detailed. However, many of requirements are still left to states and local school districts. It might surprise you to learn, for instance, that a child with a diagnosed condition might qualify for an IEP in one state but not in another state. It might also surprise you that the types of services available for kids can be different between states and even between school districts.
The U.S. Supreme Court in Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), clarified what an IEP must provide. The case involved a child with autism who had made very little progress in school. In that case, the Court reaffirmed the long-standing standard it first established in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), which was that schools must provide an educational program with services “reasonably calculated” to help the child make appropriate progress in school. But it also suggested that, ultimately, what those services are, who delivers them, and what the impact is will still depend on decisions to be made by the specific public school.
Let’s look back at one of our fictional students, Alejandro. He probably qualifies for an IEP because cerebral palsy falls within “orthopedic impairment,” one of the thirteen categories enumerated in IDEA. Moreover, his disability appears to impact his academics. If he had an IEP, he might get specialized instruction to help him in his classes. He might also receive related services, such as occupational therapy for his mobility issues.
It’s more difficult to determine if our other students—Ben and Caitlin—would qualify for IEPs. Dyslexia falls within one of the thirteen categories in IDEA: “specific learning disability.” But it’s not clear that Ben’s dyslexia “adversely affects” his education. Similarly, does Caitlin’s severe peanut allergy entitle her to special services? Most likely not.
In addition to IEPs, two lesser-known but similar kinds of plans are available. Like IEPs, they are both authorized by IDEA. First, an Individualized Family Services Plan (or IFSP) is for very young children, birth to age three, who have developmental delays. This plan covers the period before children are school-aged, when they are preparing for school. Second, the Private School Service Plan details how a local public school will make services available for a child in private school who has a qualifying disability. A Service Plan, however, is typically more limited than an IEP.
Section 504 Plan
Section 504 Plans take their name from Section 504 of the Rehabilitation Act of 1973. These plans are less common than IEPs. Nevertheless, about 1.1. million school-age students have 504 Plans. That’s roughly 2.3 percent of public school students.
A 504 Plan lays out how a child with a disability will have access to the general education curriculum in public schools. Section 504 is a nondiscrimination law. Rather than providing educational services, 504 plans focus on removing barriers to learning. Schools are required to serve kids with disabilities “as adequately” as they serve kids without disabilities. What this means in practice is that a 504 plan will typically not provide as much in the way of services as an IEP.
Unlike IEPs, 504 plans are not uniform across the country; the reason is that they are governed by the Rehabilitation Act of 1973, rather than the more specific provisions of the IDEA. A 504 plan may be lengthy or short. It may be written or not written and simply agreed upon in an in-person meeting between a family and a school. In practice, the contours of 504 plans are left up to states and local school districts.
It’s also easier to qualify for a 504 plan than an IEP. Section 504 plans are available for any disability, which is defined broadly to cover any “physical or mental impairment that that substantially limits one or more major life activities of such individual.”
Again, back to our students. Alejandro, as discussed above, probably qualifies for an IEP because of his cerebral palsy. He wouldn’t need a 504 Plan.
Ben, on the other hand, might not qualify for an IEP. However, he probably would qualify for a 504 plan because he needs audiobooks to help with reading. The 504 Plan could give Ben the ability to use audiobooks for school or other technology that gives him equal access to written text. These changes to how education is delivered are known as “school accommodations.”
Caitlin’s peanut allergy doesn’t qualify her for an IEP but probably does qualify her for a 504 plan. The plan might be quite simple—it might consist only of a requirement that her school provide her a peanut-free environment.
Gifted or Exceptional Student Plan
Finally, we come to gifted or exceptional student plans. These plans are less common than IEPs or 504 Plans, but exact estimates of how many students have them are hard to come by.
A Gifted or Exceptional Student Plan is a program that serves the unique educational needs of a gifted child. Except for a few provisions in the Elementary and Secondary Education Act, gifted education is not discussed significantly in federal law. There is no federal right to gifted education.
Given the scarcity of federal law on gifted education, most requirements for gifted plans come from the states. In 2015, a survey found that eighteen states required local school districts to have educational plans for gifted students. The forms of these plans varied significantly. Gifted plans, unlike IEPs, are not standardized. And unlike IEPs or 504 Plans, there is no uniform legal standard indicating what they must provide. Who qualifies depends on the state and local school districts, and the identification of gifted kids can be very controversial. See Chris Mills Rodrigo, New York City Panel Recommends Ending Gifted Programs for Students, The Hill (Aug. 27, 2019), https://thehill.com/homenews/state-watch/458983-de-blasio-appointed-panel-recommends-ending-selective-programs-to.
Of the three students we’ve been returning to, Caitlin is the one who might be eligible for some type of gifted plan. Whether it’s available depends on where her family lives. There might be a range of services available, including grouping with other gifted children, acceleration or advancement, and accommodations in the classroom.
To illustrate how variable gifted education can be, consider my experience in a small town in New Jersey. A few years ago, the Board of Education in my town passed a policy offering gifted students a short, one-page document outlining some additional strategies to use. But there is no formal program. In a neighboring school district, just a short drive away, there’s a fully immersive gifted program with extensive services for a handful of children who are admitted to it.
Summary of Plans; How to Get Started
Federal Authority: IDEA
Who Qualifies: Must have a disability in one of 13 categories that “adversely affects” education
What It Provides: Special education and related services
Legal Standard: “Reasonably calculated” to help the student make progress in school
Federal Authority: Section 504
Who Qualifies: Any disability
What It Provides: Accommodations for the student to remove barriers to learning
Legal Standard: Serve the student “as adequately” as students without disabilities are served
Federal Authority: None
Who Qualifies: Depends on state or local law
What It Provides: Depends on state or local law (common strategies are ability grouping and acceleration)
Legal Standard: Depends on state and local law
The first step toward getting an educational plan in public school is to request a school evaluation in writing. The evaluation process depends greatly on the individual needs of a student, and is beyond the scope of this article. However, to help you get started, here are questions you can ask in preparation.
- What are the child’s unique needs compared to typical learners?
- Has the child been evaluated by a professional?
- If so, are there documents that detail those needs?
- How is the child doing in school—failing, thriving, not meeting the child’s potential?
- Based on the child’s needs, what are the types of plans that might be needed?
- What are the laws in the child’s state on these plans?
- Is there a local education expert or advocacy group that can give more guidance about local practice and law?
- Are there other families with similar children that have found success with one type of plan or another?
• Find Your Parent Center, Ctr. for Parent Info. & Resources, https://www.parentcenterhub.org/find-your-center/
• State Contacts, U.S. Dep’t of Educ., https://www2.ed.gov/about/contacts/state/index.html
• Understanding Evaluations, Understood.org, https://www.understood.org/en/school-learning/evaluations/evaluation-basics/understanding-evaluations
• Andrew M. I. Lee, Endrew F. Case Decided: Supreme Court Rules on How Much Benefit IEPs Must Provide (Mar. 22, 2017), Understood.org, https://www.understood.org/en/community-events/blogs/in-the-news/2017/03/22/endrew-f-case-decided-supreme-court-rules-on-how-much-benefit-ieps-must-provide
• Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, Office for Civil Rights, U.S. Dep’t of Education, https://web.archive.org/web/20170411203230/https://www2.ed.gov/about/offices/list/ocr/504faq.html.
• National Association for Gifted Education, nagc.org
• 2014–2015 State of the States in Gifted Education, Policy and Practice Data (Nov. 2015), Nat’l Ass’n for Gifted Children & Council of State Directors of Programs for the Gifted, NAGC.org, http://www.nagc.org/sites/default/files/key%20reports/2014-2015%20State%20of%20the%20States%20%28final%29.pdf