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, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 88 SPECIAL EDUCATION LAWIn recognition of this, Congress in 1986 amended the IDEA to provide for special education benefits for children up to the age of five. This mandate was updated with amendments that provide that states should make available programming to infants and toddlers (from birth to age 2) who are disabled.38 A similar grant program is pro-vided for children with disabilities ages 3 to 5.39 The financial incentives are particu-larly strong for the program for preschoolers in terms of additional federal support to be made available to states electing to take advantage of the program.To receive grants under either of these programs, the state must demonstrate that it has a policy of making the programming available to all eligible children meeting the definition within the state. The Infants and Toddlers grant program contemplates a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services.“Uneducable” StudentsOne of the IDEA principles is the concept of zero reject. This is found in the requirement that states are to provide education to all students with disabilities.40 In spite of this seemingly clear mandate, a few courts have adopted a position that at least some students are uneducable.41 While the Supreme Court has not yet addressed this issue, one federal appellate court has done so with detailed discus-sion of the congressional history, the statute and regulations, and case law interpre-tation and overruled a lower court decision that had held that a child was ineligible for special education services because he was incapable of benefiting from such services. The case involved Timothy W., born in 1975, two months premature to a 15-year-old mother. He weighed only 4 pounds at birth and had numerous severe developmental disabilities, including severe spasticity, cerebral palsy, brain damage, joint contractures, cortical blindness, quadriplegia, severe respiratory problems, and hearing defects. Although he received some services from a child development center, he did not receive any services from the school district when he reached school age. As part of the school’s initial evaluation of his eligibility for special edu-cation services in 1980, it was determined that “Timothy was not educationally handicapped . . . since he was not ‘capable of benefitting’ from an education.” For the next three and a half years he received no educational programming from the school district. At this point, in response to attorney intervention, the school reevaluated Timothy, and the placement team recommended a program of special education at the Child Development Center. The school board rejected this recom-mendation based on their finding that he was ineligible for services. A complaint was filed in federal district court in November of 1984. After four years of legal debate including hearings and rulings by both the court and administrative agen-cies, the district court rendered a final decision that “under EAHCA, an initial determination as to a child’s ability to benefit from special education must be made in order for a handicapped child to qualify for education under the Act.” The court held that this was an implicit part of the act and applied only in cases where there were extreme disabilities.The following is an excerpt from the appellate court’s reversal of that decision.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 89TIMOTHY W. V. ROCHESTER SCHOOL DISTRICT875 F.2d 954 (1st Cir. 1989)III. Legislative HistoryNot only did Congress intend that all handi-capped children be educated, it expressly indi-cated its intent that the most severely handicapped be given priority. This resolve was reiterated over and over again in the floor debates and congressional reports, as well as in the final legislation. The principal author . . . stated that the bill “assures that handicapped children in the greatest need will be given prior-ity by requiring that services be provided first to those children not receiving an education; and second, to those children with the most severe handicaps receiving an inadequate education.”This priority reflected congressional accep-tance of the thesis that early educational intervention was very important for severely handicapped children. . . . [Timothy] would be in the highest priority—as a child who was not receiving any education at all.In mandating a public education for all handicapped children, Congress expli-citly faced the issue of the possibility of the non-educability of the most severely handicapped.Thus, the district court’s major holding, that proof of an educational benefit is a prerequi-site before a handicapped child is entitled to a public education, is specifically belied, not only by the statutory language, but by the legislative history as well.Since the Timothy W. decision, the zero-reject concept has been generally accepted and no court has disagreed with the decision. The decision in this case may resolve the issue for Timothy while he is within the age eligibility for public education. Unresolved as a policy matter, however, is who bears these costs when he is no longer eligible for public educational services.SUMMARYStudents with disabilities who seek to challenge practices and policies of public edu-cational agencies will find their rights affected by the theory under which they bring action. A constitutionally based case offers students with disabilities protection from school policies and practices by applying a standard of heightened scrutiny—that is, the school must show that its action furthers some substantial state interest. This standard is applied not because individuals with disabilities fall into a specially pro-tected class but because education is deemed to be such an important interest.Federal statutes offer more specific and special treatment for students with dis-abilities. The IDEA is categorical in its definitional coverage and requires not only that the individual have one or more of the listed disabilities but also that the individual require special education and related services because of the disability. The student 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. 90 SPECIAL EDUCATION LAWmust also be within the specified age range. While it might seem that the law is fairly specific in defining who is covered, a number of questions remain subject to varied judicial interpretations. These questions include who is actually learning disabled, whether chronically ill students or those with contagious diseases (such as HIV) fit within the definition, and whether students who are still age eligible but who have received a high school diploma are covered.The definition under the Rehabilitation Act and ADA is much broader, covering not only those with substantial impairments but also those who have a record of or are perceived to have an impairment that substantially hinders a major life activity. This different coverage necessitates an understanding of the procedures and remedies avail-able under those statutes and how they overlap and differ from the IDEA.Special situations relating to who is protected include the issue of gifted students. The IDEA does not provide protection for this group, but many state laws do. The issue then is whether the criteria for selection of these students and the application of these criteria are valid. As a general rule, courts give a great deal of deference to edu-cational agencies in their implementation of such programs.Students with disabilities who are in private schools are eligible for some special education through the public education agency. The same is true for incarcerated juve-niles. With both groups, however, there are logistical problems of identifying the stu-dents and providing the education to students who are geographically separate from the public school program.Recognition of the value of early intervention and education services for young children led to the development of additional incentive grant programs for children younger than age of five. While states are not required to provide these programs to be eligible for general IDEA funding, there is a clear recognition of the value of these programs and the importance of having federal subsidization of state efforts to provide preschool programming. Although these programs have been in existence for many years, courts have not yet addressed many issues related to the mandates for this age group. Recent amendments to the IDEA have clarified some requirements.One other group of individuals has received special attention by courts and administrators, namely those who are deemed by some to be “uneducable.” While the zero-reject principle of the IDEA would seem to prevent the exclusion of any child with a disability from public education, the zero-reject policy raises an important gen-eral question, namely, whether educational agencies should be the parties responsible for providing certain expensive quasi-custodial, quasi-medical services to students with severe disabilities. Those who would argue that they should would probably agree, however, that additional funding or better interagency funding responsibility is required if educational agencies are to carry this burden. 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 p...
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