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Chapter 2: Education Legislation
Prior to the 1970s, children with disabilities, both mental and physical, were educated to the extent authorized by applicable state law. The laws regarding the education of children with disabilities varied widely from state to state. In many locales, children with disabilities were either not educated at all or were educated in institutional settings such as state hospitals or state residential schools. Very few children with disabilities were mainstreamed – educated in classrooms with their non-disabled peers.
This situation began to change in 1972, with the passage of the landmark Congressional act Public Law 94-541: Education for All Handicapped Children Act. The law was recently re-authorized as Individuals with Disabilities Education Act (IDEA, 2004). This legislation is one outcome of the Civil Rights movement of the 1960s. IDEA expresses a preference for mainstreaming children with disabilities as much as possible and avoiding segregation into special education classrooms so that children with disabilities are provided educational opportunities commensurate with the child's abilities.
In addition to the IDEA, Section 504 of the Rehabilitation Act of 1973 protects a broader range of individuals with disabilities in and outside the educational setting. A broader civil rights statute, Section 504 prohibits discrimination against people with disabilities by any federal agency or any other institution or activity that receives federal funding such as school districts. Because Section 504 of the Rehabilitation Act of 1973 was intended as civil rights legislation, “disabled” is more broadly defined than within IDEA.
In this chapter, current trends in the education of children with disabilities will be highlighted and the major provisions of both the IDEA and Section 504 of the Rehabilitation Act of 1973 will be discussed. To illustrate educational plans for a child with NMD, examples of both an IEP and a 504 Accommodation Plan are provided in Appendices A and B at the end of Chapter 4. There will also be a brief discussion of the Americans with Disabilities Act (ADA) and how it protects the rights of disabled people in the public sector.
Starting in the 1970s, people within the Disability Rights movement began a concerted effort towards providing equal opportunities for people with disabilities. With the insurgence of this movement came many changes in attitudes, access, and language. Two of the many changes in society have been shifts in educational trends and in the use of language.
With the movement toward equal opportunity and equal access came a demand for a change in terminology, how society talks/thinks about impairment and people with disabilities. During and prior to the 1970s, terms like “handicapped,” “special,” “unfortunate,” and “deviant” were not uncommon terms used to discuss disability and disabled people. This terminology was frequently used to discuss disabled people as a problem in much the same way these terms had been used in the past to discuss race and people of color as a problem. Because the clamor for civil rights is about recognizing that gross disparities in areas such education and employment are socially constructed rather than based upon “natural” ineptness or inability, changing the language is seen as a first step towards learning new attitudes and changing behaviors.
Today, most parents and some disability rights activists within the United States promote people first language. In other words, they suggest that “person with a disability” is the appropriate terminology because it focuses upon the individual and not the disability. However, there are also disability rights activists who encourage, within the community, the use of terms like “disabled people” to recognize that, while disability is not the individual's primary focus, it is society's focus when relating to people with disabilities and, therefore, it is an integral part of the individual experience of being a member of a minority group. The former terminology individualizes the situation while the latter recognizes group experience. Most within the community use these terms interchangeably.
As stated previously, during this struggle for access and opportunity, there has also been a shift in the education of children with disabilities. Prior to the 1970s, children with disabilities were in segregated classrooms, if they were taught at all. Many within the disability rights movement have argued that, in order to have equal opportunities in life, one must have an equal opportunity at an equal education.
This movement has led to a shift in the education of children with disabilities. Over the past two decades, more children with disabilities have been placed in mainstream classrooms. As a result of this shift, educators have developed new ways of providing services in the mainstream classroom that will support children with disabilities. Because of these new trends, children with disabilities now have a greater opportunity to be better educated, to participate in after school activities, to go on to higher education, and to become gainfully employed.
IDEA is a comprehensive law that provides specific provisions for children with disabilities in education. According to the IDEA, a child with a disability is defined as:
(A) … a child-- (i) with mental retardation, hearing impairment (including deafness), speech or language impairment, visual impairment (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
(B) Child age 3 through 9 --The term “child with a disability” for a child age 3 through 9 may, at the discretion of the state and the local educational agency, include a child-- (i) experiencing developmental delays in one or more of the following areas as defined by the state and as measured by appropriate diagnostic instruments and procedures: physical development, cognitive development, communication development, social or emotional development, or adaptive development,; and (ii) who, by reason thereof, needs special education and related services. (Section 602(3))
The major provisions of IDEA include: 1) free and appropriate public education for all children; 2) nondiscriminatory assessment; 3) development of an Individual Education Plan (IEP); 4) due process; 5) privacy of records; 6) education in the least restrictive environment possible; and 7) discipline under IDEA. This section will briefly discuss these provisions.
The nondiscriminatory assessment provision calls for a fair assessment process to determine a child's educational talents and needs. It was created because previous assessment practices had falsely lowered the scores of children due to extraneous factors such as motor weakness, cultural or language differences, or lack of normal exposure to information. These tests were often used to limit the amount and type of education provided to children who were poor, of color, and/or had disabilities. In order to create an equal playing field, tests that discriminate upon the basis of factors such as race, gender or disability are forbidden when assessing the child's academic ability and eligibility for accommodations.
The Individual Education Plan provision specifies that each child with a disability should have on file an Individual Education Plan (IEP) – see Appendix A following Chapter 4 for a sample IEP. Regulations have specified a general process for the development, evaluation, and updating of an individual plan; however, details vary from state to state. In general, schools establish a multi-disciplinary team consisting of the disabled child, when appropriate (Section 614(d)(1)(B)of P.L. 94-142, now IDEA), parents, teachers, school administrators, school psychologists, special educators, school nurses and others.
For a child with NMD, the IEP team might include all or a combination of the following: the parents and child; the teacher of the child's mainstream classroom; a teacher who specializes in orthopedic disabilities and special education; a resource specialist; a school psychologist; a school administrator; and the school nurse. This team reviews the progress of the child with NMD in the school and attempts to create solutions to problems that occur in the classroom. If a child cannot be helped by modifications or alterations of the classroom setting and/or coursework, he or she may be referred for further study and possible assistance from the special education program. When further evaluation identifies the child with disabilities and qualifies him or her for special education services, an IEP is developed which addresses the child's educational needs and objectives. The IEP team creates individual goals and objectives for the child's scholastic development as well as services and/or accommodations to support the achievement of these objectives. The school district |
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is responsible for providing accommodations and related services that will appropriately meet the individual needs of the child. Although criteria for qualification for special education services vary from state to state, in general, when a child's achievement and ability to participate fully in school is significantly impacted by the disability, he/she will qualify for special education services.
There are several goals an IEP must cover. It must state the following: 1) services and supplemental aids the school district will provide to help the child in the mainstream classroom, when mainstreaming is determined appropriate by the team;
2) program modifications or supports for school personnel that will involve the child and promote his/her progress in the mainstream curriculum; 3) program modifications that will support participation in extracurricular and non-academic activities within the school; 4) the location, duration, and frequency of services; 5) how the child's progress will be measured when it differs from that of the child's non-disabled peers; and 6) how and when the school will inform parents of their child's progress.
In addition to services, the school is responsible for providing case management or coordination of help for the child. Each school will usually have several people who serve in this role. Often the special education teacher or the school psychologist will help coordinate services and facilitate communication between the school and the home. Due to their increased role in the IEP process, mainstream teachers also frequently assist with the management of services.
Although IEPs are intended to be a collaborative approach to a child's educational goals, disagreements can and do occur between the school system and parents of children with disabilities. In the event of a disagreement, the parents of a child with a disability have the right to due process. The first step in the process to resolve the disagreement is mediation. However, if mediation is not successful, a hearing will then be scheduled with the local Department of Education. Mediation and hearings are provided at no cost to parents. However, if a parent wishes to hire an attorney, it is at the parents' expense. This mediation process must be uniform and the school is responsible for informing parents of their due process rights.
This provision is the duplication of federal privacy laws pertaining to people with disabilities. It requires that school records are restricted to those who need the information to plan the educational experience for the child. Confidential records cannot be shared with outsiders without the consent of the individual with the disability or, in the case of minors, the parents or guardians. Therefore, school districts should have in place measures to protect the confidentiality of a child's records.
According to IDEA, the least restrictive environment (LRE) is defined as: “To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled..." (Section 612(a)(5)(A) of IDEA 97). This means that a child with a disability should be educated in a mainstream classroom to the greatest degree suitable, while providing the accommodations and services needed by the child.
Since its inception, IDEA has been amended several times. In 1997, for example, IDEA was changed to include the requirement that IEP teams must provide clear rationale for limiting the instruction of the child in the mainstream classroom and curriculum when this is done. If services outside the mainstream classroom are deemed necessary, the IEP team must state why these services must be provided in this manner.
What has not changed, however, is the responsibility of the team to develop a plan that meets the needs of the child in the least restrictive environment for that child. These determinations need to be made based on the child's individual and unique needs and abilities. What may be the least restrictive setting for one child may be too restrictive for another child. Therefore, each child's IEP should reflect the unique abilities and needs of that child rather than a one-size-fits-all approach to accommodation and education.
As is shown in Figure 1, there are a range of educational environments from least to most restrictive and a child's educational needs may fall anywhere along this continuum. Most children with disabilities can be educated within a mainstream classroom with either supplemental support to the classroom or resource program support for a portion of their school day. Each school district is responsible for providing a full continuum of services for children who are eligible for special education services and, therefore, a child's educational goals should only be limited by the child's academic ability and desire to succeed.
There are many other provisions within IDEA. Some of these include: 1) Adaptive equipment, such as computers and specialized desks/seats, must be provided when necessary to meet individual goals for children who are covered by IDEA; 2) Beginning no later than the first IEP and to be in effect when the child is 16 (Changed under IDEA 2004), the requirement to develop a transition plan to employment or higher education; 3) Improved coordination of services within the school that includes the parents and the child in the decision making process; 4) Assessment for educational intervention; 5) IEPs emphasize school, community, and social outcomes, such as functional skills, achievement in mainstream curriculum and social skills; 6) The child's mainstream teacher must be present at the IEP when a mainstream educational environment is being considered or is included in the child's educational plan; 7) Positive behavioral interventions must be a part of the IEP process for children whose behaviors interfere with their learning or the learning of others; 8) No later than one year before the child reaches the age of majority under state law (18 in most states), the legal rights (if any) regarding special education services move from the parents to the student with a disability. These and other provisions help provide an improved educational experience for children with disabilities.
Children may be disciplined for minor infractions of school rules, whether they are disabled or not. However, in more serious cases of misbehavior there must be a balance struck between providing a free appropriate public education and providing a safe school environment that permits all children to learn. Children with disabilities are subject to major school disciplinary actions resulting from their inappropriate behavior. Under IDEA, school authorities, usually the school principal may suspend a student with a disability for up to 10 days. During the first 10 days of suspension, schools are not required to provide educational services.
Suspensions may be repeated for new acts of misconduct as long as there is no pattern suggesting the presence of additional disabilities. During any subsequent suspension for less than 10 days, services must be provided that permit the student to advance toward meeting IEP goals and making progress in the general curriculum. Should a pattern develop or when a child is removed for more than 10 consecutive days, a change in placement is likely to occur. If this happens following a suspension, the school must conduct behavioral assessments, develop a behavioral intervention plan, and meet with the child's IEP team within the 10 days following the end of the suspension.
Section 504, a broad civil rights law, protects individuals with disabilities. It applies to all institutions receiving federal funding, including public schools and institutions of higher education. The intent of Section 504, in terms of education, is to assure that disabled students have the same educational opportunities as non-disabled students by prohibiting discrimination based upon disability. Monitoring compliance for this law, in terms of education, is the responsibility of the U.S. Department of Education/Office of Civil Rights (DOE/OCR). The major educational provisions of Section 504 of the Rehabilitation Act of 1973 include: 1) Non-discrimination against people with disabilities; 2) Comparable education; 3) A 504 Accommodation Plan; 4) Due process; and 5) Institutional accessibility. Many of the provisions within IDEA are repeated within Section 504 and, in terms of education, simply cover a broader group of people with disabilities than IDEA. This section will briefly discuss these provisions.
Students who are considered "disabled" under Section 504, but not under special education laws are entitled to "reasonable accommodation" of their disability. Children with many medical conditions such as asthma, diabetes and neuromuscular disease, may not easily fit under IDEA due to the act's limited definition of who is defined as disabled. While a child may not be covered under IDEA, if he or she is defined as an individual with a disability within Section 504, the child is entitled to the accommodation of his/her disability under the Rehabilitation Act.
Under Section 504, disabilities or “handicapping conditions” are defined in much broader terms than IDEA. Section 504 defines a "qualified individual with disabilities" as any person that "(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment” (Section 104.3 of P. L. 93-112). A "substantial limit of one or more life activity” is usually defined as difficulty in walking, seeing, hearing, speaking, breathing and/or learning. Students with NMD are considered as having substantially limited life activities when their daily work and classroom tests show a pattern of failure despite conscientious effort, and when their achievement is below the instructional range of the classroom, as demonstrated by achievement tests, daily work, and classroom tests,. As a result, students with NMD who are not covered under IDEA are usually covered under Section 504 of the Rehab Act.
Under Section 504, as under IDEA, children are guaranteed the right to a free appropriate education in the least restrictive environment. An appropriate education under Section 504 means that a child with a disability receives an education with reasonable accommodations within the mainstream classroom and curriculum that is comparable to that of non-disabled students.
A 504 Accommodation Plan, like an IEP, is developed that specifies the types of modifications and alterations needed in order to address the child's educational needs (see sample plan, Appendix B at the end of Chapter 4). The types of services offered might include adjusting class schedules, providing extra time on and/or modifications of tests (e.g. an exam in large print, double-time on tests), and/or using adaptive equipment. Like an IEP, this plan is developed with the child with the disability (when appropriate), the parents, the child's mainstream teacher, a school administrator, and sometimes specialists who can be consulted regarding appropriate modifications.
Similar to IDEA, Section 504 also requires districts to provide impartial hearings for parents or guardians who disagree with the school district's evaluation findings, educational placement, and/or provision of services. Parents have the right to timely notification, the right to inspect records, the right to participate in a hearing with legal or other representation, and the right to appeal. As with IDEA, parents should be informed of their rights and responsibilities under Section 504 of the Rehabilitation Act by the school.
Section 504 has detailed regulations regarding building and program accessibility. The district must provide physical accessibility within the school and classroom as well as at extracurricular venues (such as sports and theater venues) and activities (such as field trips, after-school clubs and programming). Building modifications may be needed in order to provide physical access, such as wheelchair ramps or elevators, Braille/large print signage, a sound and light fire alarm system. These modifications are required to offer access for all individuals with disabilities who wish to enter the school including students, employees, parents, and the general public.
Another major piece of legislation affecting children with NMD is the Americans with Disabilities Act (ADA). The ADA was signed into law on July 26, 1990 and was intended to prohibit discrimination on the basis of disability in employment, to update some provisions within the Rehabilitation Act of 1973, and to prohibit discrimination by private companies and in privately owned public venues. The law contains requirements for new construction, for alterations or renovations to buildings and facilities, and for improving access to existing facilities of private companies providing goods or services to the public. Beyond physical accessibility, the ADA also provides for reasonable accommodations in communication, policies, and procedures that exist within public and state venues such as shopping malls, public libraries, state parks, and schools.
Although most people believe this legislation deals primarily with accommodating employees with disabilities, the ADA is civil rights legislation affecting all aspects of life. Like the Rehabilitation Act of 1973, the ADA defines a person with disability as someone with a physical or mental impairment that substantially limits one or more major life activity such as walking, talking, seeing, hearing, breathing, learning, has a history of such an impairment, and/or is thought to have such an impairment.
The ADA specifies that buildings be accessible to individuals with disabilities. The provisions specify architectural adjustments such as ramps and elevators, accessible transportation (e.g. a wheelchair accessible public transportation), accessible bathroom facilities, or visual/auditory fire alarm systems. These modifications make it possible for individuals with disabilities to access public, employment, and educational venues independently. While these provisions were established for academic settings through the Rehabilitation Act, the ADA provides updated codes for architectural modifications and expands access for people with disabilities into the public sector. By providing these types of accommodations within a school setting, children with disabilities gain more independence and have the opportunity to socialize with their peer group without adult interference. This, in turn, increases socialization skills and improves the child's self-perception and quality of life.
The law states that employers and, by extension, school personnel, must make reasonable accommodations for an individual with a disability. Reasonable accommodations in school make existing facilities used by people without disabilities readily accessible to and usable by people with disabilities. Such accommodations may include but are not limited to: the modification of a work schedule; the acquisition or modification of equipment (e.g. adaptive computer hardware/software); the provision of books and information in accessible formats (i.e. books on tape or in electronic format); and the provision of American Sign Language interpreters and/or closed captioning. School personnel are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as wheelchairs, glasses or hearing aids. However, schools are expected to provide accommodations that level the playing field in terms of participation and access to the public venue.
The decision as to what constitutes an appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of accommodation to provide, the principal test is that of effectiveness, i.e. whether the accommodation will provide the opportunity for a person with a disability to achieve the same level of performance and to enjoy the same benefits as those achieved by an average, similarly situated person without a disability. In addition, the school is not required to make an accommodation if it would impose an "undue hardship" on the operation. An "undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of the size and resources available to the institution in question. For example, “undue hardship” for a school district would be based upon the size and available resources of the particular school district. For example, an economically disadvantaged urban school district would be looked at differently than a suburban school district that is not economically disadvantaged.
Children and their parents have rights under the law and schools must be prepared to grant children with disabilities an equal opportunity to access an equal education. At the same time, there are limits on what the schools can and do provide. An equitable process has been provided to satisfy the needs of individuals and the institutions that serve them. However, to work effectively, everyone must be aware of both the letter and the spirit of the law.
National Information Center for Children and Youth with Disabilities and the Federal Resource Center for Special Education. (2003). IDEA '97 Training Material . Revised text-only online version. http://www.nichcy.org/training/contents.asp[30 June 2004]
While the ADA does overlap with the Rehabilitation Act and IDEA, the ADA , within the educational setting, strictly pertains to providing access to the public and school employees not to the education of children with disabilities.