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"Special Rules for Special Education"

Special Rules for Special EducationAs the school year starts, parents and students face a host of challenges: extra curriculars; new teachers and classmates; and for some families, understanding the rules governing special education for their children with disabilities or special needs. Special education is growing fast, both in the education and legal communities. This issue is quickly becoming one of the most complex aspects of education. Consequently, it is often a source of worry for educators, parents, and students alike. Although working through the legal system can be stressful and costly, as a parent, you shouldn’t be afraid to advocate for your child, and when needed, to turn to the legal system to ensure your child gets a useful and appropriate education.

To understand the legal framework behind special education, parents of special needs children should become fully versed in the Individuals with Disabilities Education Act (IDEA). IDEA is the federal law that regulates educational services for disabled students. Under IDEA, a child is eligible for special education services if that child has a recognized disability, and because of the disability, needs special education and related services. This means that if your child is disabled, special education services are not automatically available-the disability must impact your child’s education.

Before advocating for your child, become familiar with IDEA terms:

Free and Appropriate Public Education (FAPE): IDEA guarantees that eligible children receive a FAPE. FAPE prepares children for productive, independent lives and gets them ready for further education. A FAPE must be based on research- proven methods of teaching and learning.

Least Restrictive Environment (LRE): IDEA requires that disabled students be educated in LREs. An LRE can be in either a public or private institution and can include regular or special education classrooms. LREs require that disabled children be placed in separate classrooms only when no benefit can be derived in the traditional setting. LREs ensure that disabled children are educated amongst nondisabled children as much as possible.

Individualized Education Plan (IEP): An IEP is essentially a written plan outlining a special needs child’s educational goals and needed services.

IEPs combined with due process hearings, make up the cornerstone of IDEA. These two steps provide the structure for your child’s education and allow you to voice any concerns. Your child’s IEP should include long and short-term goals, as well as benchmarks and assessment points. You should be present when the IEP is created and should ensure that all interested parties are there as well: special and regular education teachers; professionals such as social workers and psychologists; and, in some cases, your child. The IEP meeting is often a long process and it is important that you feel your child’s rights are protected.

Due process hearings tend to garner the most attention; however, if your child’s IEP is appropriate and followed, there should be little need for such a hearing. Hearings should only be used as a last resort when all other routes have failed. Due process hearings give parents the opportunity to challenge a proposed IEP, move, or educational change. Since these hearings are formal legal proceedings, they are becoming ever more sophisticated and costly. Nevertheless, you should not avoid a hearing if you feel one is needed in order to help your child receive necessary services.

A due process hearing is similar to a civil trial, although slightly less formal. At a hearing, evidence and testimony will be presented and there are often opening and closing arguments. These hearings allow you and the school the chance to show why your desired placement or change is best. Hearings are conducted in front of impartial hearing officers, who are usually independent contractors not employed by the local board or state agency. You can hire an attorney or advocate to represent you, or you can represent yourself if you choose. It is important to realize that the school will be represented by attorneys and that there are many legal terms and theories at play. Although legal fees can be costly, depending on the complexity of the issues involved and the emotions you are bound to feel, in some cases hiring an attorney may prove invaluable. Under IDEA, your child will “stay put” during the challenge over a placement or service. This means that for the duration of any mediations or hearings, children remain in their current placements. For some parents, this provides time for evaluation and a sense of safety during this stressful process.

You are central to your child’s special education. First and foremost, under IDEA, parental consent is required before an initial evaluation and before an IEP can be put in place. This consent is important because it allows parents time to decide how to respond and opens up the initial dialogue between parents and schools. Even after consent has been given or a placement has been challenged, you can continue to play an important role. It is helpful to educate yourself about your child’s rights under IDEA. You should also evaluate the relationship you want to create with school administrators-remember, currently you may disagree with them, but your child will be a part of the school community for years to come. In order to maintain good relations, prioritize your concerns and goals, and try to keep these at the forefront of any discussions or decisions. Lastly, it is important to keep detailed notes and copies of all documents. Every conversation with evaluators or school officials should be recorded, and notes should be maintained at every meeting. Although this may seem like a lot of work, if you ever need to challenge a decision or go to court, you will be happy you have such detailed records.

Special education is an important tool for many families as it provides their children with access to education and productive futures. If your child has been assessed as needing special education services or if you feel as though your child is not receiving the services necessary for his or her education, work with school administrators and your attorney to determine the appropriate course of action.

(Fall 2007)

"Back to School on Equal Terms"

Back to School on Equal TermsSummer vacations are a distant memory, and students all over the country have packed their book bags and head back to school. Many young people―and their parents―don’t realize that a federal law, Title IX, protects the right of all students to receive equal opportunities at school, both inside and outside the classroom. Title IX prohibits sex-based discrimination under any educational program or activity that receives federal financial support. Title IX doesn’t just require equal opportunities for male and female athletes. It applies to all aspects of education, from math class to band practice.

The primary purpose of Title IX is to give all women and girls equal educational opportunities and benefits―and in particular, to open doors to colleges and graduate schools. Before Title IX, many graduate schools had quotas on the number of women they would admit, and some schools set higher standards of admission for women than for men. Under Title IX, such practices are illegal.

There are two types of discrimination under Title IX. Disparate-treatment discrimination occurs whenever students are treated differently because of their gender. This might occur, for example, if girls are assigned to home economics classes and boys are assigned to shop class, or if a teacher gives males pamphlets about careers in construction but does not give the same information to females. There might be disparate-treatment discrimination in athletics if a high school athletics program schedules girls in a nontraditional or less popular season, while the boys play in a traditional season.

Disparate impact is a more subtle form of discrimination that occurs where actions that appear to be gender neutral actually affect one sex more than the other. For example, there may be disparate-impact discrimination if a school has a rule that “students with long hair cannot conduct chemistry experiments.” Such a rule appears to be gender neutral because it applies to all students, but in fact it applies to more female students than male, because more females have long hair. The school might be able to justify the policy if it can show a “substantial legitimate justification” for the rule. For example, it might argue that such a policy is necessary for safety reasons. Female students might argue in turn that safety could be protected to the same extent if students with long hair were required to keep it tied back during experiments. Similarly, a rule that students can only play tuba in the school marching band “if a student can carry a tuba for one hour” might be discriminatory. The rule appears to be gender neutral because it ostensibly applies to all students, but in fact it is likely to apply to more female students than male students because female students are less likely to have the physical strength and stamina required to carry the instrument for so long.

If you think a school is discriminating between students on the basis of sex, talk to your lawyer about the steps you can take to make a complaint and seek redress.

(Fall 2006)