Chapter 4: The people Before examining in detail the substantive and procedural requirements and the remedies available under the laws relating to special education, it is useful to have a sense of the various individuals who are involved in these issues. These include the students themselves, their parents, educators, administrators, related service providers, advocates, and decision makers. The following sections describe the major characteristics of these people. This chapter focuses on those individuals primarily from the perspective of the Individuals with Disabilities Education Act (IDEA). StudentsCategorizationNot all students with disabilities are covered by the IDEA. To be eligible for the protec-tions under the IDEA, a student must fit into the definition of a “child with a disability” under the law. The definition includes 13 categories of disabilities. The definition states,Child with a disability means a child evaluated in accordance with §§ 300.304 through 300.311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impair-ment, autism, traumatic brain injury, another health impairment, a specific learning dis-ability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.Each of these categories of disability has its own specific requirements that must be met in order for a student to be eligible to receive services under the law. These requirements are discussed in more detail in Chapter 6. States may also have a category for children ages 3 through 9 experiencing developmental delays with physical devel-opment, cognitive development, communication development, social or emotional development, or adaptive development.1 In October 2010, “Rosa’s Law” went into effect. That law required a change in the term mentally retarded to intellectually disabled in all federal statutes and regulations.2It should be emphasized that the student must not only fit into one or more of the listed categories but must also require special education and related services because of the disability in order to be eligible for services. Some have raised concerns about the categorization system used for providing special education services under the IDEA. One concern is that the categorical labels do not always accurately reflect the characteristics of the students. Additionally, labeling may stigmatize the student, and once a student is labeled, it may be difficult to change the label. Some believe that attaching a label to an individual may well result in a self-fulfilling prophecy.3Some contend that the labels or categories do not help teachers to identify the appropriate means of providing instruction and training. As a result, some profession-als have recommended that the classification of students be noncategorical. These recommendations have been implemented in some states. For example, Texas, Colorado, and California train and certify special educators noncategorically. The move away from categories had positive results in a variety of programs throughout the country. The 2004 amendments to the IDEA provided states with some additional discretion in this area by stating that the IDEA does not require states to classify stu-dents by disability as long as each student who has a disability as defined by the law and needs special education and related services is regarded as a child with a disability. In other words, a state does not have to categorize students as learning disabled (LD), speech/language impaired, other health impaired, and so on. It could instead just develop a system that provides that students who meet any of the categories of dis-ability under th The People 55While some of the legal issues relating to labeling will be discussed more fully in Chapter 6, a few general points should be noted here. Within the categories set out by the IDEA definition of a child with a disability, a wide degree of difference exists among students. The educational needs of students within these categories are corre-spondingly widely disparate. And even students with the same functional level may have differing educational needs because of a variety of factors. It should, therefore, be apparent that attaching a label to an individual provides only the most general infor-mation about that student. It is one of the reasons that individualized educational programming that goes beyond the student’s label is required for students with dis-abilities under the IDEA. Placement and services cannot be based just on the label.Gaps in CoverageOne category not covered by the IDEA is gifted and talented. Although the IDEA does not provide coverage for this group of students, many states provide special educa-tional programming for gifted students. Several other categories of students are not comprehensively covered by the IDEA. The first is the chronically ill student, the stu-dent with an illness such as cancer or diabetes who may be frequently absent from school for treatment or because of illness. Students could be covered under the law in the “other health impaired” category, but only if they require special education and related services by reason of the disability. A student who is frequently absent and needs a program of homebound instruction because of illness may fit the definition.Similarly, a student with HIV or another infectious disease may meet the defini-tion of a child with a disability for purposes of the IDEA under the “other health impaired” category, but only if the student requires special education and related ser-vices as a result of the disability. If the student does not require special education services, the student could still be protected under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).This distinction in coverage can be important if the student is seeking to take advantage of the procedural safeguards noted in Chapter 3 that are available under the IDEA that are not available under Section 504 or the ADA. More information about the procedural safeguards under these different statutes is provided in Chapter 12.An additional category of students are those with attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD). These conditions may affect the concentration abilities and other behaviors. At one time, there was a debate about whether this condition should be treated as a separate disability under the IDEA or whether it would fall under the definition of learning disability or other health impair-ment. Because of this debate, the 1990 amendments to the IDEA required that the United States Department of Education solicit public comments on the issue.As a result of the comments, the United States Department of Education listed ADHD as one of the chronic or acute health problems that can fit in the other health impaired category.5 As with other students with chronic illness, having ADHD alone is not sufficient to be eligible for services under the IDEA. The student must meet the other requirements of the other health impaired category and must require special education services. While some of the legal issues relating to labeling will be discussed more fully in Chapter 6, a few general points should be noted here. Within the categories set out by the IDEA definition of a child with a disability, a wide degree of difference exists among students. The educational needs of students within these categories are correspondingly widely disparate. And even students with the same functional level may have differing educational needs because of a variety of factors. It should, therefore, be apparent that attaching a label to an individual provides only the most general information about that student. It is one of the reasons that individualized educational programming that goes beyond the student’s label is required for students with disabilities under the IDEA. Placement and services cannot be based just on the label.Gaps in CoverageOne category not covered by the IDEA is gifted and talented. Although the IDEA does not provide coverage for this group of students, many states provide special educa-tional programming for gifted students. Several other categories of students are not comprehensively covered by the IDEA. The first is the chronically ill student, the stu-dent with an illness such as cancer or diabetes who may be frequently absent from school for treatment or because of illness. Students could be covered under the law in the “other health impaired” category, but only if they require special education and related services by reason of the disability. A student who is frequently absent and needs a program of homebound instruction because of illness may fit the definition.Similarly, a student with HIV or another infectious disease may meet the defini-tion of a child with a disability for purposes of the IDEA under the “other health impaired” category, but only if the student requires special education and related services as a result of the disability. If the student does not require special education services, the student could still be protected under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).This distinction in coverage can be important if the student is seeking to take advantage of the procedural safeguards noted in Chapter 3 that are available under the IDEA that are not available under Section 504 or the ADA. More information about the procedural safeguards under these different statutes is provided in Chapter 12.An additional category of students are those with attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD). These conditions may affect the concentration abilities and other behaviors. At one time, there was a debate about whether this condition should be treated as a separate disability under the IDEA or whether it would fall under the definition of learning disability or other health impair-ment. Because of this debate, the 1990 amendments to the IDEA required that the United States Department of Education solicit public comments on the issue.As a result of the comments, the United States Department of Education listed ADHD as one of the chronic or acute health problems that can fit in the other health impaired category.5 As with other students with chronic illness, having ADHD alone is not sufficient to be eligible for services under the IDEA. The student must meet the other requirements of the other health impaired category and must require special education services.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 56 SPECIAL EDUCATION LAWThe medically fragile student in most cases is protected under the IDEA, but such individuals are a group for whom education agencies may have difficulty providing ser-vices. Medically fragile students include those who might require suctioning6 or some other similar attention to ensure that medical conditions do not cause injury to the stu-dent. Until 1999, there was an unsettled legal debate involving some of these students: The mainstreaming principle discourages homebound instruction, so the issue for school districts became how far they had to go in providing related services that some may consider medical in nature (like suctioning, catheterization, operating a portable ventilator for the student, etc.). A related issue is who has to provide the services. Does a school nurse provide the services, or can an aide or classroom teacher provide services?Understandably, teachers are often concerned about liability related to the safety and health of medically fragile students. If teachers are to provide services, school districts must ensure that teachers are appropriately and adequately trained to provide them, that a backup plan is available when there are emergencies, and that a clear pro-cedure has been developed for providing such services.7A case that helped to resolve this issue is the Supreme Court decision in Cedar Rapids Community School District v. Garret F.8 In that case, a high school student who had been paralyzed at age four required a variety of services for his physical needs while in school. These services included bladder catheterization, suctioning of a tra-cheotomy tube, feeding, positioning, and ventilator services. The services required some degree of training but did not require that a physician perform them. The Supreme Court held that, although they are intensive and costly, if a doctor is not required to perform the services and the student requires the services to be able to attend school, then the educational agency has the obligation to provide or fund these services during school hours under the IDEA.Another category of students who may fall through the cracks between special and regular education is the slow learner. Unless a student is defined as learning disabled, intellectually disabled, or one of the other categories of disability under the IDEA, he or she is not entitled to the individualization and special attention accorded to the student with a disability under the IDEA.Historically, regular education was often geared toward the average student, which meant that the slow learner’s needs might not be met in a traditional educational pro-gram. Today, there are ongoing efforts in many places to provide differentiated instruction within the classroom for all students to address the different learning styles and abilities of students. These efforts are outside of the IDEA’s requirements.Additionally, over the years, there has been some disagreement among profession-als about the definition of learning disabled. Some contend that the definition used in the IDEA has led to the misclassification of some students, with some students who are really slow learners being classified as learning disabled under the law and others who are actually learning disabled not being classified as learning disabled under the law. Congress and the United States Department of Education attempted to address some of the issues with the learning disability classification when the IDEA was amended in 2004, and new implementing regulations were issued in 2006. These change Students who are socially maladjusted constitute another category that is not spe-cifically covered under the IDEA. There has been a substantial controversy over the years about whether to identify or even separate socially maladjusted students from those who meet the definition of emotionally disturbed and whether it is possible to do so. The definition of emotional disturbance in the IDEA’s regulations states that it does not include students who are socially maladjusted unless they have an emotional disturbance.9 Thus the issue becomes whether the social maladjustment can be separated diagnostically from other ailments the student may have that could be covered under the emotionally disturbed category.10Students who are addicted to drugs or alcohol present unique difficulties. Alcohol and drug addiction itself is not considered a disability under the IDEA. These students would be protected under the IDEA only if they required special education and related services under one of the recognized categories of disability. Even when such students are not entitled to special education under the IDEA, there may be instances in which they would be given some protection against adverse treatment because of Section 504 of the Rehabilitation Act or the ADA. Clearly, this is an area where there is an increas-ing need for services, but at this point, the primary responsibility for these services does not fall on the school system within special education mandates.In sum, most students entitled to special education are more different from each other than they are alike. They are more like other students in the school system than they are different. But for most of them, their differences require specialized instruc-tion and some accommodation if they are to benefit from the educational system.It is also important to note that historically, most attention to special education students has occurred on the elementary school level. This is reflected in program-ming and teacher training. There has, however, been an increasing recognition in the education field of the importance of early education and the transition at the second-ary level to the workplace or postsecondary opportunities. This recognition is reflected in changes to the IDEA promoting prevention and early intervention (including early childhood and infant programs) and an increasing emphasis on vocational training and transition services for special education students.ParentsWho Are Parents?When determining the special education placement of an individual entitled to ser-vices under the IDEA, the individual who will usually be asked to consent to the evaluation, placement, or other decision is the parent. Children under the age of majority as defined in state law (usually 18 years of age) are generally presumed legally incompetent under the IDEA to consent to decisions made on their behalf. The prefer-ences of the individual may be a consideration, particularly with matters such as tran-sition services, and the student may participate in the special education process, but the parents make the decisions. As a result, the procedural protections under the IDEA menti 58 SPECIAL EDUCATION LAWstudent is under the age of majority. Once the student reaches the age of majority, the procedural and other rights under the IDEA transfer to the student unless the student has been determined to be incompetent under state law.11 The parents maintain a right to notice along with the student under the IDEA even when the student reaches the age of majority.12For purposes of the IDEA, whenever reference is made to decision making or involvement by the parent, the term is intended to include not only the actual parent but also possibly a grandparent, a stepparent, a surrogate parent appointed by the court or a social service agency, or a court-appointed guardian.13 The intent is that the per-son who is legally responsible for the student shall be the person responsible for mak-ing special education decisions. In instances where the student is a ward of the state, a surrogate parent would have to be appointed or some other arrangement would have to be made, because the term does not include the state itself in the role of parent.Given the divorce rate in the United States, it is not unusual for a student to have parents who do not live in the same household. When one parent has legal custody, ordinarily that parent will have the authority to make decisions about special educa-tion placement and will be the party to whom notice of special education decisions is to be sent. In fact, both parents continue to have rights under the IDEA unless the divorce decree specifies otherwise. Problems can arise, however, where divorced par-ents have joint legal custody of a student. Must the school send both parents copies of all general school notices or only notices about special education matters? While there is not a great deal of litigation in this area, it is an issue that arises from time to time. It seems that where there is joint legal custody, both parents retain their rights under special education law, even when the parents disagree. This may mean that one parent signs off on an education plan while the other seeks to challenge it through a due pro-cess hearing. It is possible that, in extreme cases, an interim judicial action may be necessary pending the final resolution of a case. One of the few cases to address this issue indicates that while it is unreasonably burdensome to send copies of routine announcements about school activities to both parents with legal custody, they are probably both entitled to access to school records.14 It is probably also advisable to send both parents notices about testing, placement, and other special education matters that relate to the individual student.The Role of ParentsParents are an essential component to the effectiveness of the IDEA. Only by requiring that parents be apprised of their rights and informed of the procedures available is the attainment of the IDEA goals possible. Parental participation requirements include mandatory notification of parents at various stages of the process and mandates ensur-ing that the opportunity for parental participation is available.15Although there is probably a general consensus about the significance of the parental role in carrying out the requirements of the IDEA, there are those who believe that not all students with disabilities are benefiting from the IDEA, because they do not all have strong parental advocates. The thought is that aggressive middle-income FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 60 SPECIAL EDUCATION LAWenactment of special education requirements, much has changed in terms of teacher preparation, so the challenges are different.In spite of the initial negative reaction to the IDEA, teachers have come to accept and embrace the inclusion requirement as a fact of life in public education, and there is improvement in the amount of support provided to the regular classroom in the form of consultation with special educators, teaching assistants, volunteers, and others. In addition, the teacher education programs for new teachers are likely to include experience with special education issues and educational methodology for students with disabilities. Some states now require experience with special education for all teachers. Teachers are also more likely to have access to in-service training relating to special education issues to compensate for knowledge they did not receive while acquiring their teaching degrees.Although the attitude and preparation of the regular education teacher has improved since 1975, there are still some serious obstacles for this teacher. The initial funding promises and plans of the IDEA have not been entirely fulfilled by the federal government, and there remain significant problems of understaffing in the regular classroom. For example, placement for a student with a mild intellectual disability may be appropriate in the regular classroom, but the student may need additional support for certain aspects of the educational program and there may not be funding to pro-vide a teacher’s assistant.In addition, coordination and cooperation between regular classroom teachers and special education teachers are needed. These two groups should communicate needs, problems, and solutions to each other. Another concern is that the regular edu-cation teacher may need more in the way of training relating to identification of dis-abilities, behavior management, and direct instruction methods for students who do not learn from the traditional teaching strategies. Teacher education programs, state certification requirements, and local hiring practices should require regular education teachers to demonstrate these skills. A number of positive improvements have occurred in these areas, but the need to improve regular education teacher preparation for providing special education programming in the regular classroom is ongoing and in serious need of attention.18 In addition to providing training and support services, increasing the financial compensation of educators will be an essential component if future efforts are to be successful.The 2004 amendments to the IDEA recognized the need to have high-quality teachers and high-quality professional development training so that teachers who provide services to students with disabilities have the skills and knowledge necessary to use scientifically based instructional practices to improve the academic achieve-ment and functional performance of students with disabilities.19 Under No Child Left Behind (NCLB) and the 2004 amendments to the IDEA, both regular education teachers and special education teachers must contend with the highly qualified teacher (HQT) requirements in NCLB. To be highly qualified under the IDEA, a spe-cial education teacher now must (1) obtain full state certification as a special education tea a bachelor’s degree.20 There are slightly different requirements for teachers who teach students to meet alternative achievement standards.21Special education teachers that teach core academic subjects to students with dis-abilities must meet the requirements for a highly qualified special education teacher noted above and they must also meet the NCLB requirements for each core area taught. This means the teacher must have a bachelor’s degree, obtain state certification, and demonstrate competency in the core academic area taught.22 Core academic sub-jects are defined as English, reading or language arts, mathematics, science, foreign language, civics and government, economics, arts, history, and geography.23 Special education teachers who teach two or more core subjects exclusively to students with disabilities are subject to different requirements. These teachers must (1) meet the requirements of NCLB for any elementary, middle, or secondary school teacher or (2) if the teacher is not new to the profession, demonstrate competence in the core academic subjects taught in the same way that NCLB requires for an elementary, middle, or secondary school teacher who is not new to the profession; or (3) in the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner as required by NCLB within two years of hire.24To ensure that special education teachers are highly qualified, the IDEA requires states that receive funds to establish and maintain qualifications to ensure that personnel that provide services to students with disabilities are appropriately and adequately prepared and trained. They must have the content knowledge and skills to serve students with disabilities.25One of the skills of the special education professional is being able to work with the regular educators in developing an appropriate program to maintain the student in the least restrictive setting. Historically, many special education teacher training pro-grams were developed to match definitional categories, and this practice continues in some programs today. For example, training programs for teachers of students with learning disabilities existed separately from teacher training programs for teachers of students with behavior disorders (BD). But the interrelationship of the various special education teacher preparation programs was minimal. While there have been improve-ments in this area, it is important that this trend continue.26In recent years, regular education and special education teachers have begun working in collaboration. Such positive interaction is most likely to occur where there is supportive school leadership. With the increase in another education trend—site-based management—it will be critical that school principals have a mechanism by which to stay current on special education requirements and the best practices to implement them.A major concern for both the regular classroom and the special education program is teacher shortages. There continues to be a shortage of teachers adequately trained to provide education to special students. While the IDEA requires program personnel development for states receiving funding, the low pay and high demands of teaching in general (and special education teaching in particular) continue to keep FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE 62 SPECIAL EDUCATION LAWspecial education understaffed. This situation is even more problematic in rural and inner city areas.27 Some schools have responded to teacher shortages by using tempo-rary certification as a vehicle to meet certification requirements. There is much con-cern about whether teachers with temporary certificates are adequately prepared.Previously, one of the ironies of the IDEA was that often teachers of specialized subjects—such as art or woodworking—were the least likely to have teacher prepara-tion to address the needs of the special student but were the most likely to have the child with a disability placed in the class. It was not unlikely for a student with certain disabilities to be placed in a segregated special education class for most of the academic-type subjects but to be placed with his or her ageappropriate peers for music or art. Over the years, this practice has become less common due to the least restrictive environment requirements in the IDEA and increasing focus on inclusion and mainstreaming, but it is still important that teacher certification and teacher train-ing programs recognize that teachers of special subjects need training in behavior management, in communicating with the regular education and special education teacher, and in teaching methodology.Another important area is vocational education teacher training. There is an increasing awareness today that high school students, who are at the end of the pub-lic education service system, need to be provided with skills that will enable them to be productive members of society. One of the primary goals of the IDEA is to pro-vide students with the knowledge and skills they need to lead productive and inde-pendent adult lives, including preparing them for further education and employment.28 With recognition of the importance of this transition has come the knowledge that our public school systems are not adequately staffed with appropri-ately trained vocational teachers.AdministratorsOne of the most important administrators in providing special education is the local director of special education. That person has the responsibility for ensuring that local schools are adequately staffed with appropriately trained personnel and for overseeing the development and implementation of the individualized education programs for each student in the local school district. The special education director must also develop the data necessary for obtaining funding from the state educational agency. The special education director must plan systematic steps to help students move between regular education and special education. It is essential that special education directors be able to communicate with the local principal and local board of education to ensure that appropriate policies are made and carried out.The attitude and knowledge of the local superintendent and the school principal are also critical to the effective implementation of special education policy. The tone and philosophy comes from the top. These are individuals who signal by their priori-tization and personal attitudes the importance of various educational issues.29At the state level, administrators responsible for special education must develop the program plans for federal and state funding, ensure appropriate funding to the FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE local school districts, and have teacher certification requirements that ensure compre-hensive teacher preparation. It is important that state administrators be able to coor-dinate and cooperate with other social service providers as certain types of placements fall under the responsibility of several agencies. It is necessary not only to coordinate the appropriate services to be provided but also to establish which agency’s budget will fund those programs.In many states, particularly states with large populations, an intermediate level of regional administration has been developed. Regional activities often include develop-ment of in-service programs and cooperative plans for providing certain services among local education agencies within the regions.Other PersonnelProviding special education involves a variety of other individuals within the educa-tional system who may not be directly involved with providing educational program-ming or related services. These include teachers’ aides, custodial staff, clerical staff, and volunteers. While these individuals may not be directly involved in programming for these students, it is important nonetheless that they be able to communicate with those responsible for developing education plans for special students. It is also impor-tant that they be alerted to special situations that may require their attention. For example, they may need to alert the principal’s secretary about a student with severe emotional problems who may exhibit violent behavior if sent to the principal’s office. Lunchroom monitors may need to be prepared to respond to a student who has fre-quent epileptic seizures.The failure to train such individuals adequately could result in harm to the student or others. Not only would such a result be detrimental to the student, it could result in legal liability to the school district for failure to provide adequate training. This issue is discussed more fully in Chapter 16. The challenges for regular and special educators in supervising these individuals were noted previously.Related Service ProvidersBecause of the need to provide related services (such as transportation), individuals that might as a group be referred to as related service providers are often involved in providing educational programming and supportive services to students with dis-abilities. The following would be included in this group: speech and language thera-pists, physical therapists, occupational therapists, school social workers, counselors (to provide counseling to the child or the parents), nurses (for nonmedical health services), physicians (for diagnostic purposes only), and individuals providing transportation services.Some of these individuals provide services for both students with disabilities and those who do not have disabilities. For example, a school nurse may provide catheterization service to a student with spina bifida and also administer cough medicine to a student who is not disabled but who has a cold. Others, such as speech and language therapists, may provide services only to students with disabilities. Regardless of the degree to which these individuals are involved with services for students with disabilities, it is essential that they be adequately trained and prepared to work with students with special needs. The IDEA now includes qualifications for related services personnel.30The requirement that states ensure that personnel are appropriately and ade-quately prepared and trained and have the content knowledge and skills to serve stu-dents with disabilities includes qualifications for related services personnel and paraprofessionals. The IDEA requires states to develop or include qualifications that□•Are consistent with any state-approved or staterecognized certification, licens-ing, registration, or other comparable requirements that apply to the profes-sional discipline in which those personnel are providing special education or related services;□•Ensure that related services personnel who deliver services in their discipline or profession meet these requirements and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and□•Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with state law, to be used to assist in the provision of special education and related services to children with disabilities.31NCLB also imposes some training and qualification requirements for paraprofes-sionals that work in Title I schools or that receive payment from Title I funds. Training for both regular educators and special educators related to supervising paraprofession-als can be particularly challenging where paraprofessionals have lengthy experience in the schools and may resent supervision from younger, less experienced teachers.AdvocatesPassage of the IDEA was in large part due to the concerted efforts of advocacy groups in bringing litigation and lobbying for legislation that has affected students with dis-abilities. The role of advocates continues to be a vital part of the implementation of special education law. Advocates are not only necessary to press for implementation but in many cases can be valuable resources for information.There are currently many advocacy, consumer, and voluntary health organizations at the national, state, and local level. Many of these organizations focus on advocacy on behalf of one particular group, such as students with deafness, autism, learning dis-abilities, and other disabilities. The value of these organizations in advocacy is demon-strated by the fact that the Pennsylvania Association for Retarded Citizens was the plaintiff in the landmark PARC v. Pennsylvania case, which, along with Mills v. Board of Education, set the stage for passage of the IDEA. A 1975 federal law provided grant money to any agency that would funded through grant programs within the U.S. Department of Health and Human Services and the U.S. Department of Education.32 In 1975, one of the challenges to effective attorney advocacy in special education cases was the lack of knowledge and experience. That is no longer the case. Many law schools teach courses in disability discrimination, special education law, or education law (which includes attention to special education issues). There are numerous refer-ence books, including treatises, manuals, and loose-leaf services. So, at least the lack of information for lawyers is no longer a barrier, but it can still be difficult for parents to find an attorney to represent them in special education matters.33 In many areas of the country, lay advocate organizations at the local level are helpful in advising parents on how to obtain appropriate special education for their children. These groups can sug-gest strategies for working with school systems and can even help to prepare parents for due process hearings. In some cases, they may actually represent the parents in these proceedings.The passage of the Handicapped Children’s Protection Act (HCPA) in 1986, an amendment to the IDEA, was an important step in ensuring effective advocacy. Before that point, it was unclear whether parents could be reimbursed for attorneys’ fees and certain costs incurred in disputes involving special education placements and other decisions. The HCPA clarified that these fees are available to prevailing parties in appropriate circumstances.34 While there are still some areas of confusion about what the HCPA requires in certain instances, it would seem that the availability of attorneys’ fees has made this an area of law that is somewhat more attractive to the practicing attorney, and as a result, it should follow that an increase in advocacy will occur. Parents may have difficulty, however, in finding an attorney willing to wait for payment until resolution of the dispute. Expert fees, however, are not available, and this can be a cost barrier to parents in deciding whether to seek legal help in advocacy efforts.An important point for advocates to keep in mind is that resolution of special education disputes involves parties who must maintain an ongoing close relationship. After the dispute is resolved, the student may often be placed in a setting where the educator has had an adversarial and perhaps defensive attitude toward the parent(s). It is important that both the anger and the frustration resulting from resolving disagree-ments do not adversely affect the student’s education. In recognition of this, negotia-tion and other alternative dispute resolution should be used when appropriate.In addition to representation in particular disputes, advocacy is important for general policy changes or development. Advisory councils are mandatory at the state level35 and are also used at the local level. These offer important opportunities for advocacy. These councils include parents and other advocates who play an important role in recommending practices and policies to state and local school boards.Decision MakersAnother group of people involved in the special education process are the decision makers, or those who help resolve disputes that may arise between the school and pare 66 SPECIAL EDUCATION LAWparents and the educational agency that cannot be resolved regarding the appropri-ate program, related services, or another special education matter covered by the IDEA, there are a number of parties who may become decision makers or interme-diaries to resolve those disputes. These include mediators within state or local school district dispute resolution procedures, hearing officers who conduct impartial hear-ings, and judges.Mediators do not themselves make decisions about the dispute, but they help the parties try to reach an agreement that resolves the dispute. Hearing officers oversee due process hearings and issue binding decisions about disputes between the parties based on evidence presented at the hearing. Either party can appeal the hearing offi-cer’s decision to state or federal court. If they do, a state or federal court judge can issue a decision about the dispute.These decision-making or decision-facilitating individuals may have different levels of knowledge, awareness, and understanding about students with disabilities and the laws that protect them. While some states have special training programs specifically for special education administrative hearings, others have more training for administrative hearings generally. Many federal and state court judges have con-sidered special education cases, but many have not. It will be important for the parties to the dispute to be aware of the level of knowledge in various settings and to take it into account in educating the decision maker about disabilities, education, and the laws protecting students with disabilities in preparing a case for these different decision makers.Another group of decision makers are the administrators at the local level (dis-cussed above), as they generally have the authority to allocate school resources and can make such allocations to try and help resolve a dispute between the parties. More information about dispute resolution procedures and mediators, hearing officers, and judges is provided in Chapter 12. SUMMARY Participants in special education include the students, the parents, the educators (teachers, related service providers, administrators, and others), advocates, and decision makers. These participants play varying roles in ensuring appropriate special education.The students are a varied group that includes individuals with mobility, sensory, mental, emotional, and health impairments. The wide diversity of types and degrees of impairments under the IDEA makes individualization in providing special education an essential component of the act.There are numerous unsettled controversies about whether labeling should be done at all and whether certain categorical labels (such as learning disability) are appropriately defined or applied. Gifted and talented students and those with certain health impairments are not really protected by the IDEA, although Section 504 and the ADA the former. Students with drug or alcohol problems do not have comprehensive cover-age nor does a student who is just a slow learner.The parents in special education situations have important rights and an essen-tial role. They have a right to a hearing and an opportunity to challenge the school’s proposal decisions. With that right comes an important role—that of being a par-ticipant at all stages of the development of an appropriate program and deciding on an appropriate placement for the student. These rights and roles are fairly unique to special education. In no other aspect of public education do parents have such specific rights.Educators have numerous obligations as a result of special education legal require-ments. These demands may at times overburden understaffed, underpaid, and under-trained educational personnel. Educators must nonetheless comply with the legal requirements while advocating increased resources. The issues to be resolved at a policy level include how to fund educational agencies at an appropriate level to meet these demands. Advocates had a strong role in the initial passage of the IDEA. Initially, lay advocates were probably the primary force in the enforcement of special education mandates, but the 1986 attorneys’ fees amendment to the IDEA has led to an increased advocacy role for practicing attorneys.Decision makers are also involved in the special education process. When dis-agreements arise during the special education process, decision makers help the par-ties resolve their differences either by agreement of the parties or by decision of a hearing officer or court order.–256 (2010). Chapter5: Who is Protected 72 SPECIAL EDUCATION LAW courts have traditionally applied different levels of scrutiny, depending on the type of case involved. Two major factors are at issue in deciding what level of scrutiny to apply. One is whether the person claiming a denial of equal protection is a member of a class of individuals who are or should be entitled to special consideration. The other is the importance of the right at issue.Classification of Individuals With DisabilitiesThe following opinion excerpt demonstrates the level of scrutiny that is to be applied to individuals who are intellectually disabled. The decision did not involve the educa-tional setting, but it is instructive in evaluating potential constitutional claims involv-ing individuals with disabilities. The case involved a city council’s denial of a special-use permit to operate a group home in a residential neighborhood. The applicant for the permit wanted to operate a group home for 13 men and women with intellectual disabilities. They would have had constant staff supervision. The reason for the city’s denial included negative attitudes and fears of nearby property owners, concern that residents would be harassed by junior high students from a nearby school, the location of the home on a flood plain, and concern that a group home would result in crowded conditions. In deciding what level of scrutiny to apply in evaluating whether the denial was constitutional, the Supreme Court examined the classification of the group affected. It should be noted that the term mentally retarded is no longer the preferred term; intellectual disability is generally used instead and is now required in federal law. This decision, however, was made before that change.CITY OF CLEBURNE V. CLEBURNE LIVING CENTER473 U.S. 432 (1985)Justice White delivered the opinion of the Court.The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essen-tially a direction that all persons similarly situ-ated should be treated alike. Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congres-sional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classifi-cation drawn by the statute is rationally related to a legitimate state interest. . . .When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic pro-cesses.The general rule gives way, however, when a statute classifies by race, alienage or national FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. origin. These factors are so seldom relevant to the achievement of any legitimate state inter-est that laws grounded in such considerations are deemed to reflect prejudice and antipathy— a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suit-ably tailored to serve a compelling state interest. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Legislative clas-sification based on gender also calls for a heightened standard of review. . . .A gender classification fails unless it is sub-stantially related to a sufficiently important governmental interest. Because illegitimacy is beyond the individual’s control and bears “no relation to the individual’s ability to partici-pate in and contribute to society,” official dis-criminations resting on that characteristic are also subject to somewhat heightened review. Restrictions “will survive equal protection scru-tiny to the extent they are substantially related to a legitimate state interest.”We have declined, however, to extend heightened review to differential treatment based on age. The lesson is that where indi-viduals in the group affected by a law have distinguishing characteristics relevant to the interest the state has the authority to imple-ment, the courts have been very reluctant to closely scrutinize legislative choices as to whether, how and to what extent those inter-ests should be pursued. In such cases, the Equal Protection Clause requires only a ratio-nal means to serve a legitimate end.Against this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting stan-dard of judicial review than is normally accorded economic and social legislation. First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and func-tion in the everyday world. Nor are they all cut from the same patterns:as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for. They are thus different, immutably so, in relevant respect, and the states’ interest in deal-ing with and providing for them is plainly a legitimate one. How this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified profes-sionals and not by the perhaps ill informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predi-cate for such judicial oversight is present where the classification deals with men-tal retardation.Second, the distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continu-ing antipathy or prejudice and a correspond-ing need for more intrusive oversight by the judiciary. . . .Such legislation thus singling out the retarded for special treatment reflects the real and undeniable differences between the FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 74 SPECIAL EDUCATION LAWretarded and others. That a civilized and decent society expects and approves such leg-islation indicates that governmental consider-ation of those differences in the vast majority of situations is not only legitimate but desir-able. . . . Especially given the wide variation in the abilities and needs of the retarded them-selves, governmental bodies must have a cer-tain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.Third, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect.Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a princi-pled way to distinguish a variety of other groups who have perhaps immutable disabili-ties setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious, and that are properly subject to judicial correc-tion under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classifica-tion and subject all governmental action based on that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us. Because mental retardation is a characteristic that the government may legiti-mately take into account in a wide range of decisions, and because both state and federal governments have recently committed them-selves to assisting the retarded, we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate.Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose.The Cleburne case demonstrates that individuals with intellectual disabilities specifically, and individuals with disabilities generally, will not be given any height-ened level of scrutiny, because they are neither a suspect nor a quasisuspect class. It is important to note, however, that the Supreme Court emphasized that irrational prejudice could not be the basis for unequal treatment. This standard will be impor-tant in assessing the exclusion of students with HIV, because it is well documented FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 75that the fear of being infected with HIV through the types of casual contacts that occur in the education setting is irrational.Subsequent to the Cleburne decision, Congress enacted the Americans with Disabilities Act (ADA) in 1990. The preamble states that “historically, society has tended to isolate and segregate individuals with disabilities; . . . [and] individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination; . . . [and] individuals with disabilities are a discrete and insular minority . . . subjected to a history of purposeful unequal treat-ment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals. . . .”1 It would appear that Congress was setting the stage for possible future cases that might address dis-ability under a constitutional challenge to provide a basis to overrule the Cleburne decision. Since 1990, however, the Supreme Court has not addressed a case where this issue was raised. Thus, it is not clear whether the Court would change its analysis. Given the comprehensive statutory coverage, however, it is less necessary to bring a case under the Constitution’s equal protection and due process clauses.Heightened Scrutiny for EducationThe Cleburne case examined the classification of individuals with disabilities and con-cluded that their status does not give them any special protection. As the following case excerpt demonstrates, however, special education cases will be examined with a high level of scrutiny, not because students with disabilities are involved, but because education is considered to be a right entitled to “special constitutional sensitivity.” The case involved whether undocumented alien students residing in the United States were entitled to public education.PLYLER V. DOE457 U.S. 202 (1982)Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indis-tinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. . . .We have recognized “the public schools as a most vital civic institution for the preservation of the democratic system of government,” and as the primary vehicle for transmitting “the values on which our society rests.” . . .[H]istoric “perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political sys-tem have been confirmed by the observations of social scientists.” In addition, education provides the basic tools by which individuals might lead economically productive lives to the FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 76 SPECIAL EDUCATION LAWbenefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests. In addition to the pivotal role of educa-tion in sustaining our political and cultural heritage, denial of education to some iso-lated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barri-ers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, “edu-cation prepares individuals to be self-reliant and self-sufficient participants in society.” Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellec-tual, and psychological well-being of the individual achievement make it most difficult to reconcile the cost or the principle of a sta-tus based denial of basic education with the framework of equality embodied in the Equal Protection Clause. . . .In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an educa-tion. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. . . .If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.As the preceding two opinions demonstrate, it would seem that constitutionally based cases involving unequal treatment in the education system are going to incorpo-rate a “heightened equal protection” test, which will probably result in a very close examination of the state’s treatment of students with disabilities. The judicial opinion in the PARC (Pennsylvania Association for Retarded Children [PARC] v. Pennsylvania) case, issued before either Plyler or Cleburne, similarly indicated that exclusion of stu-dents with intellectual disabilities is unlikely to be rationally based.2Inasmuch as a constitutionally based challenge to unequal treatment or denial of education without due process is likely to succeed for students with disabilities, why then are all special education cases not brought alleging constitutional violations? The two major reasons that more are not constitutionally based are that constitu-tional cases are cumbersome and complex to litigate, and that the Smith v. Robinson3 decision established that most special education claims must be brought under the Individuals with Disabilities Education Act (IDEA). In that case, the Supreme Court also concluded in that “Where the [IDEA] is available to a handicapped child . . . [it] is the exclusive avenue through which the child and his parents or guardian can pur-sue their [equal protection claim].”4 In most cases, the IDEA will provide an adequate basis for redress.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 77Cases Under the IDEAWhat Is a Disability?As noted in Chapter 4, the IDEA defines children with disabilities as thosehaving mental retardation [now intellectual disability], a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, another health impairment, a spe-cific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.5Chapter 4 mentioned briefly some of the problems of labeling. This section will focus on some of the issues that arise under the definition of child with a disability under the IDEA. More detailed information about eligibility under the IDEA is pro-vided in Chapter 6.One of the key provisions in the child with a disability definition is that the child must require special education services as a result of the disability. A student who needs only related services that are not special education services is not covered under the IDEA.For example, a student who is able to participate fully in the regular classroom but who has a mobility impairment and needs assistance in moving from class to class may not be protected by the IDEA. Similarly, a student with spina bifida who is mentally and physically able to participate in the regular academic program but who requires inter-mittent catheterization is likely not disabled within the IDEA. Failure to provide needed services to these students, however, is probably a violation of Section 504 and the Americans with Disabilities Act requirements to provide reasonable accommodation.One of the more unusual early cases involving a disability and related services was Espino v. Besteiro.6 In that case, the boy had a condition preventing the regulation of his body temperature. Although his condition was unusual, the student was covered under the IDEA, and, as a result, the court held that the school was required to air-condition the entire classroom in order to meet the least restrictive environment (LRE) require-ments under the IDEA. The court reasoned that providing air-conditioning would give the student maximum classroom interaction with his classmates. This case would prob-ably have required the same accommodation had it applied Section 504 or the ADA.Another interesting decision involved a 13-year-old intellectually gifted girl who had anorexia nervosa. The court concluded that this physical condition resulted from underlying emotional disturbance and that she was classified as emotionally disturbed and disabled within the IDEA.7Age EligibilityTo be eligible for federal funding under the IDEA, states are to provide special education to all students with disabilities as defined under the law aged 3 through 21, including FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 78 SPECIAL EDUCATION LAWthose who have been suspended or expelled from school.8 But for those aged 3 to 5 and 18 to 21, education need only be provided to the extent consistent with state law. Additional limitations are placed on incarcerated individuals. The state has an obligation to identify, locate, and evaluate all students entitled to special education.9 This child find mandate is an important element for identifying students with disabilities and preparing schools to provide education for them once they are age eligible. In some situations, as when the child is attending private school by the choice of the parent, the IDEA does not always mandate that the schools actually provide services, but they do have to offer them to the student. In recognition of the value of early intervention to the individual and societal benefits of such intervention, in 1986 Congress amended the IDEA to provide additional incentives to states to provide programming earlier than school age. The 2004 amendments again recognized the value of early intervention.10Schools that wish to receive federal grants under the IDEA for special education and related services for children ages 3 to 5 must now provide special education to all students with disabilities in that age group.11 Previous to the effective date of the amendment, incentive grants did not mandate coverage for all age eligible students. Students entitled to services under this section must meet the definition of a child with a disability but are also entitled to coverage at the state’s discretion if they have devel-opmental delays in physical, cognitive, communication, social, emotional, or adaptive development. State education agencies that elect to apply for grants for this age group must have in place procedural safeguards and state plans that already apply to children ages 6 to 18.For infants and toddlers up to 2 years of age, grants can be awarded to an agency other than the state education agency. The goal is early intervention as a means of reducing educational costs over the long run, maximizing the potential for indepen-dent living, and enhancing the capacity of families to meet the needs of this popula-tion. The services are to be provided to “individuals under 3 years of age who would be at risk of experiencing a substantial developmental delay if early intervention ser-vices were not provided to the individual.”12The policy of the infant and toddler provisions does not mandate that the grantee agency actually provide all the needed services but that it be the agency responsible for coordinating the development, implementation, and payment of such services. Education agencies, while recognizing the value of these programs, are challenged with the financial and practical difficulties in implementing them.At the other end of the age spectrum, the IDEA provides that services end at age 21 or when the student receives a regular high school diploma.13 Students who have reached the age of 18 but who have not graduated or who have been given a diploma even though they do not actually meet the competency requirements for graduation can raise issues for educational agencies. State policies differ substantially in their treatment of these individuals. In some states, once the individual has been given a diploma, the individual is no longer eligible for public education. Some states even prohibit educational agencies from providing public education once the student has graduated, basing this on state constitutional or state statutory provisions. In these states, it may violate state policy to provide compensatory education even in cases FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 79where it is determined that the state had not provided appropriate education to the student before he or she graduated. Other states are more permissive about providing education beyond the receipt of a diploma. There is a developing body of state admin-istrative decisions and judicial decisions on this issue, and thus far the federal special education policymakers have not chosen to override state policies that conclude state responsibility at graduation.14Section 504 and the Americans with Disabilities Act and Application to Special Education SettingsSection 504 of the Rehabilitation Act of 1973 provides that “no otherwise qualified individual with a disability . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”15 The Americans with Disabilities Act, which defines a protected individual in similar terms, prohibits such discrimination by both public and private schools.A person with a disability is an individual with a physical or mental impairment that constitutes a substantial impairment to one or more major life activities, an indi-vidual who has a record of such an impairment, or an individual who is regarded as having such an impairment.16 This definition contrasts with the IDEA definition, which is a categorical listing.In 1984, the Supreme Court, in Smith v. Robinson17 established that whenever the special education statute provides a remedy, it should be the exclusive avenue for seek-ing recourse for a student with a disability. This decision makes it unlikely that most cases involving students with disabilities will be brought alleging a violation of Section 504; there will be cases in which Section 504 or the ADA is relevant.Who Is CoveredThe first element of a Section 504 or an ADA case is determining whether the indi-vidual meets the definition of being disabled within the statute and whether it is a situation that is not remedied by the IDEA. An example would be a student with a mobility impairment who cannot gain access to some areas of a school building (such as the auditorium stage or seating areas in the sports stadium) or a student who is not allowed on the basketball team because he or she is HIV positive. A student with severe arthritis who needs book lockers on two floors of a high school building as a reasonable accommodation illustrates another situation.The following decision is an example of a case of discrimination not addressed by the IDEA. The case involved a 6-year-old boy with hemophilia who had gotten HIV through a blood transfusion. When the school board decided to exclude him pursuant to its policy on children with chronic communicable diseases (adopted to respond to his situation), it became necessary to resolve whether his mother was required to pur-sue IDEA remedies in challenging the exclusion. The excerpt clarifies the distinction between coverage under the IDEA and Section 504.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 80 SPECIAL EDUCATION LAWDOE V. BELLEVILLE PUBLIC SCHOOL DISTRICT672 F. Supp. 342 (S.D. Ill. 1987)Because defendants’ argument relies on the applicability of EAHCA [Education for All Handicapped Children Act] to the plaintiff, the court must determine if plaintiff’s diagnosis of AIDS brings him within the statutory defini-tion of a handicapped individual. EAHCA defines “handicapped children” as children who are:mentally retarded, hard of hearing, deaf, speech or language impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired chil-dren, or children with specific learning disabilities, who by reason thereof require special education and related services. [Emphasis added] 20 U.S.C. § 1401(a)(1) [Now § 1401(3)].In this case the parties agree that the only category into which Johnny fits is that of “other health impaired children.” That phrase is defined as children who have:limited strength, vitality or alertness due to chronic or acute health problems such as heart condition, tuberculosis, rheu-matic fever, nephritis, asthma, sickle-cell anemia, hemophilia, epilepsy, lead poi-soning, leukemia, or diabetes, which adversely affect a child’s educational performance. [Emphasis added] 34 C.F.R. § 300.5(b)(7).In applying these definitions to the plaintiff, the Court concludes that three tests must be met before the provisions of EAHCA can be made to apply in this case: 1) there must be limited strength, vitality, or alertness due to chronic or acute health problems, 2) which adversely affects a child’s educational perfor-mance, and 3) which requires special educa-tion and related services. Here, the record reveals virtually no evidence that plaintiff suf-fers from limited strength, vitality, or alertness. Furthermore, given such evidence as is in the record of Johnny’s limited strength, there is virtually no evidence that this limitation has adversely affected his educational perfor-mance.The Court also finds it noteworthy that, while the defendants assert that Johnny’s hemophilia brings him within the statutory definition of “other health impaired children,” the health impairment they are apparently concerned with is Johnny’s AIDS virus. AIDS is not listed as an example of an acute or chronic health problem in the statute. Furthermore, the United States Department of Education, directly addressing the applicability of EAHCA to AIDS victims, has opined that a child with AIDS might be considered “handicapped” under EAHCA, depending upon his or her con-dition. More significantly, the Department’s opinion concludes that a child with AIDS is not considered to be “handicapped,” as the term is defined in the EAHCA, unless he or she needs special education. With respect to the avail-ability of special education programs for chil-dren with AIDS, the opinion states:Children with AIDS could be eligible for special education programs under the FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 81category of other health impaired: if they have chronic or acute health problems which adversely affect their educational performance.Based on the Department of Education’s opinions and the tenor of the statutory lan-guage, the Court concludes that EAHCA would apply to AIDS victims only if their physical condition is such that it adversely affects their educational performance; i.e., their ability to learn and to do the required classroom work. There is no such showing at the present time, and it seems clear that the only reason for the Board’s determination that Johnny needs “spe-cial education” is the fact that he has a contagious disease—AIDS. In the Court’s opinion, given the facts of this case as they now exist, the provisions of EAHCA would not apply to the plaintiff at this time.The decision in this case denied the defendant’s motion to dismiss the claim for failure to exhaust administrative remedies because the claim was proper under the Rehabilitation Act, and exhaustion is not required under that Act. While the excerpt indicates that the student is not covered under the IDEA, it does not decide whether he was covered under the Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973 provides that “no otherwise qualified individual with a disability . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”18 The ADA, which defines a protected individual in similar terms, prohibits such discrimination by both public and private schools.19In 1999 and 2002, the Supreme Court narrowed the definition of disability to exclude individuals whose conditions were mitigated by eyeglasses or other measures such as medication for epilepsy, diabetes, and other health conditions. In 2008, Congress amended the definition of disability for both the ADA and the Rehabilitation Act. The amendments clarify that a number of health conditions are now almost cer-tainly considered to be disabilities. Discriminatory treatment or failure to provide reasonable accommodations in response to those conditions will now be viewed as impermissible.The new definition of disability is not directly changed. Both before and after 2008, the ADA and Section 504 protected individuals who□•have a physical or mental impairment that substantially limits one or more major life activities,□•have a record of such an impairment, or□•are regarded as having such an impairment.20The 2008 amendments, however, changed and added to the definition of what is considered to be a “major life activity.” Now major life activities are defined as includ-ing but not being limited to, “caring for oneself, performing manual tasks, seeing, FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 82 SPECIAL EDUCATION LAWhearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”21 Further clarification provides that a major life activity also includes “the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”22The impact on education of students in schools is that individuals with conditions such as learning disabilities, attention deficit disorder (ADD), attention deficit hyper-activity disorder (ADHD), depression, diabetes, asthma, epilepsy, and food allergies would be protected against discrimination and entitled to reasonable accommoda-tions, even if they do not require special education or related services under the IDEA.One type of case where the IDEA would not be applicable but where discrimina-tion might occur involves accommodations and access for parents of students with disabilities. This might include a sign language interpreter for a parent who is deaf or provisions made for attendance at events by a parent with a mobility impairment. It could even apply in a situation where a child is not admitted to a preschool program because the parent is known to be HIV positive. Unlike Section 504, the ADA also applies to individuals with associational status. For example, under the ADA, a school could not prohibit the attendance of a child whose parent was HIV positive.Otherwise QualifiedA determination that an individual fits the definition is only the first step toward challenging a discriminatory practice. The definition specifies that the individual must be “otherwise qualified.” The first Supreme Court case to address any issue under Section 504 dealt with this requirement. In Southeastern Community College v. Davis,23 the Court found that a nursing student with a hearing impairment was not otherwise qualified to participate in the nurse-training program because she could not meet the program’s requirements “in spite of” her disability. In that case, Frances Davis had a severe hearing impairment, and the nursing program determined that this would be a threat to patient safety and denied her admission. The Supreme Court upheld the denial.Programs subject to Section 504 or the ADA are not obligated to make substantial modifications or fundamental alterations to the program to accommodate the disabil-ity. They are, however, required to make reasonable accommodations where these do not pose an undue hardship on the program. The Supreme Court in School Board of Nassau County v. Arline, while finding tuberculosis to be a disability, remanded the case for a determination as to whether the plaintiff was otherwise qualified. The Court indicated that issues such as the duration and severity of the condition and the prob-ability that the disease would be transmitted required a factual determination before the decision could be made that she was or was not “otherwise qualified.” The Court noted: “A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified . . . if reasonable accommo-dation will not eliminate that risk.”24FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 83The Court further stated that a determination of that risk should be based on “reasonable medical judgments given the state of medical knowledge, about . . . the nature . . . duration . . . and severity of the risk . . . and . . . the probabilities the disease will be transmitted and will cause varying degrees of harm.” Two years after the Supreme Court decision, the district court found Gene Arline not to be a risk and to be otherwise qualified.Applying this standard, the presumption should be that as a general rule a student with HIV is otherwise qualified because the weight of medical knowledge is that HIV is not transmitted by casual contact. This presumption may be rebutted in specific cases, such as where because of a child’s behavior (biting) or manifestation of symp-toms (open sores, oozing lesions that cannot be covered, etc.), there is a risk of com-municating the disease. Also, if the student with HIV is at a point where the immune system is so depressed that exposure to ordinary childhood infections, such as flu and chicken pox, would pose a serious danger to that individual student, it may be that the child is not otherwise qualified to attend regular school. And in either case, where the student is at risk or poses a risk, the student would generally be viewed as at least “oth-erwise qualified” for homebound instruction, unless the student is simply too ill to do schoolwork. In response to the concern about students with infectious diseases in schools, the Centers for Disease Control (CDC) developed and published guidelines in August 1985. The guidelines apply to students who are HIV positive as well as those with HIV or clinical AIDS. They are relevant to other contagious and infectious dis-eases in schools.The guidelines are premised on current medical evidence that indicates that “casual person-to-person contact as would occur among schoolchildren appears to pose no risk.” The CDC recommendations provide for individualized assessment, team decision making, a presumption of inclusion, precautions regarding handling bodily fluids and hygienic practices, privacy and confidentiality protection, and educa-tion to parents, students, and educators.25Reasonable AccommodationAs noted previously, there are particular difficulties regarding several populations of individuals and whether they are covered under the IDEA. These include medically fragile children (whose needs may be medical as well as educational), children with ADD or ADHD, children with health impairments (such as asthma or cancer), chil-dren with contagious diseases such as HIV or tuberculosis, those who are socially maladjusted but not emotionally disturbed, and those who are addicted to drugs or alcohol.26 Students with diabetes raise a number of complex issues that could include whether they are disabled within Section 504 or the ADA and what kinds of accom-modations might be required.27As noted previously, although students may not be entitled to special education and related services under the IDEA, the ADA and Section 504 of the Rehabilitation Act may protect the student from discrimination. The reasonable accommodation requirement under both the ADA and Section 504 may mandate that services and FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 84 SPECIAL EDUCATION LAWspecial programming be provided. For example, the school may be required to allow a student with asthma to carry and use an inhaler as an exception to a rule prohibiting self-administered medication. And while the school may not be required to pay for the costs of drug rehabilitation for a student addicted to drugs, it may be required to adjust attendance requirements to allow a student to attend drug therapy sessions.There have been a number of other instances in which courts have applied Section 504 to cases involving students with disabilities. For example, in Wolff v. South Colonie Central School District,28 a girl who wanted to participate in a schoolsponsored trip to Spain was denied participation because her limb deficiency would make it too difficult for her to keep up with many of the activities involved in the trip. The case was decided under Section 504, and it was held that the exclusion was permissible because she was not “otherwise qualified.”Architectural Barrier IssuesBoth Section 504 of the Rehabilitation Act and the ADA provide a mandate for more accessible facilities and programming. This mandate refers to a number of requirements, such as ramps and accessible restrooms. Section 504 applies to all educational agencies receiving federal financial assistance. Title II of the ADA applies to public schools and Title III to private schools.29 Both public and private schools must ensure that new construction meets specific barrier-free design requirements. In addition, private schools are required to remove existing barriers to the extent it is readily achievable to do so. Public schools are required to conduct a self-evaluation of their programs and to ensure that the program when viewed in its entirety is accessible. This might mean that having a barrier-free school within the school district would satisfy the requirement from a student’s perspective. But this may not be sufficient from the perspective of others protected by the ADA. For example, a parent with a mobility impairment attending an event such as a graduation ceremony would be protected by the ADA. For that reason, a school may be required to remove barriers in all schools to provide the required access to the public, even though the school might not be required to provide the same level of access for students in the school system in that area.This issue does not fall directly under the topic of special education. It is important to recognize, however, that because ADA mandates apply to public events and access by parents, the barrier-free design requirements may result in all schools being more accessible. Therefore, a student in a wheelchair who does not require special education and related services would be more likely to be able to attend the neighborhood school because its barriers would have been removed as a result of the broader ADA mandate.Special SituationsGifted StudentsFederal special education law does not included gifted students within its coverage. Some states do, and those that include special education students may provide similar procedural FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 85protections to this group of students. Areas of dispute related to gifted students include what classification methods are permissible for these students. For example, there have been disputes about how intelligence quotient (IQ) and other testing instruments are used. Courts addressing these issues have been deferential to the state policymakers on their decisions. Additional discussion of this issue is beyond the scope of this text.Students in Private SchoolsEducation services for students in outof-district placements and in private schools is one of the areas where the 1997 and 2004 IDEA amendments provide clarification. There had been some dispute about students who had been placed in private schools by their parents and whether they were entitled to the same level of special education services as those students who had been placed in or referred to private schools by the public agency. This issue is discussed in greater detail in Chapter 10. The following, however, is a brief overview of the issue.Under current policy, the programmatic and financial responsibility of the public educational agency depends primarily on the role the public agency had in making the placement decision. In general, for students placed by their parents in private schools within the local school district, there is a proportionate payment of educational costs and an obligation to find and identify these students. The student is not entitled to a free and appropriate public education and does not have the same rights under the IDEA as a student who is enrolled in public school.30 Where the public agency makes the placement at a private school, the public agency is still responsible for ensuring that the student receives a free and appropriate public education and the student has the same rights under the IDEA as a student who is enrolled in public school.31 Where the public agency had been previously involved with the special education placement but the parents place the student in a private placement without that agency’s consent or referral, reimbursement of the costs may still be required if a free appropriate public education had not been made available to the student in a timely manner.32Incarcerated JuvenilesAnother issue that arises relating to eligibility is how special education is to be pro-vided to incarcerated juveniles. In some instances, these individuals are in trouble because of problems relating to their disabilities. How to prevent that from occurring is perhaps one of the underlying goals of the IDEA. But once the individual is in a juvenile detention facility or otherwise incarcerated, the individual is technically still entitled to special education if he or she is eligible otherwise. The logistics of provid-ing special education in detention facilities are quite difficult in many instances, and this is a topic that is receiving increasing attention. In addition, many students with learning disabilities and psychological problems have never been identified and are therefore not receiving services. The transient nature of this population is a further obstacle to satisfactory implementation of the IDEA. Some of these challenges are discussed in Chapter 11.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 86 SPECIAL EDUCATION LAWStudents With Learning Disabilities and Related DisabilitiesStudents with learning disabilities present unique challenges under the IDEA. One challenge arises from disagreements at the policy level about which individuals should be included in a definition of learning disability. Another challenge is what kinds of services should be provided. This area of law underwent significant changes in the 2004 amendments to the IDEA. The changes are discussed in detail in Chapter 6.The definition for learning disability under the IDEA refers to a “disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculation.” The term does not include students who have learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. It does include disorders such as “perceptual disabili-ties, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”33The number of students identified as learning disabled increases every year. The reasons for what may be overidentification of students as learning disabled include overburdened regular education teachers, improperly trained personnel, and, to a lesser extent, federal reimbursement for identifying a child as learning disabled. More positive reasons for the increase include greater public awareness, improved assess-ment methods, reevaluation of minority placement where students had been identified as intellectually disabled, and the less stigmatizing label of learning disability versus intellectual disability (formerly mental retardation).34 Whatever the reasons, the num-ber of students with learning disabilities continues to increase, and this is an area where there is likely to be dispute about whether a child really meets the definition.The conditions of ADD and ADHD have been the subject of much debate. In rec-ognition of this, the 1990 amendments to the IDEA mandated that the U.S. Department of Education solicit public comments regarding ADD and ADHD. The Education Department was to resolve whether students with ADD or ADHD should be catego-rized as eligible for services under learning disability, other health impaired, or some other separate category. As a result of its evaluation, the Education Department decided that there should not be a separate category for ADD but listed ADD and ADHD as specific conditions recognized as chronic or acute health problems under the other health impaired category.35 In some instances, school districts are required to provide special services to students with ADD or ADHD under Section 504 or the ADA.Students Who Are Emotionally Disturbed or Socially MaladjustedStudents with behavior problems present special difficulties for educational agencies and their obligations under the IDEA. While it is clear that students who are seriously emotionally disturbed or socially maladjusted need services, it is not clear that the school must provide them under special education mandates. One of the major chal-lenges for this population is determining whether the student meets the definition of disability under any of the federal statutes. Another challenge is trying to determine if the placement is primarily for educational reasons or for psychological reasons or a combination of those. Those issues are more fully addressed in Chapters 7 and 8.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 87In the case of Evans v. Independent School District 25,36 the court addressed this issue. The student had a combination of learning disabilities and problems with peer interaction, impulse control, and excessive anxiety in the school setting. The court noted the legislative history on this issue.EVANS V. INDEPENDENT SCHOOL DISTRICT 25936 F.2d 472 (10th Cir. 1991) Seriously emotionally disturbed children are clearly included within the Education for All Handicapped Children Act [EAHCA]. 20 U.S.C. § 1401(a)(1) [Now § 1401(a)(3)]. The Supreme Court has noted:Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. Honig, 484 U.S. at 309.The legislative history confirms this proposition.In drafting Public Law 94–142, Congress was concerned with the emo-tional trauma and educational difficul-ties inherent in misclassification of children as handicapped or not handi-capped. For that reason, Congress attempted to develop concise defini-tional regulations and a due process procedure that would allow review of any classification decision. The lan-guage of 34 C.F.R. § 300.5(b)(8) excludes children who are socially mal-adjusted from coverage under the Act, unless they are also seriously emotion-ally disturbed. That a child is socially maladjusted is not by itself conclusive evidence that he or she is seriously emotionally disturbed.One of the issues more likely to arise in light of recent tragedies in high school settings (such as Columbine) and on college campuses (such as Virginia Tech) is whether an institution of higher education should be informed of behavior and con-duct issues or any diagnosis of an emotional disturbance. Policies resulting from recent attention to this concern have not yet resolved these challenging issues.37Infants and Toddlers and Preschool ChildrenThe value to the learning process of early intervention is generally recognized by experts in child development. This is particularly true for children with disabilities. The earlier they are provided with developmental programming, the better able to benefit from public education they will be. It is also generally recognized that while it is costly to provide early educational programs, in the long run, there is a significant cost savings to the public. The student who is provided early programming will be less likely to require substantial public support after public educational programming has been completed.FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, ...
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