Special Education for Pupils with Disabilities
G. Emerson Dickman, J.D.
An overview of legal and practical issues regarding the delivery of special education to pupils with disabilities.
- Basic rights
- Due Process
- School Records
- Quality Of Services
- Least Restrictive Environment
- Section 504
- Practical Considerations
- Sum Good of the Whole vs. Good of the Individual
- Subtyping and Comorbidity
- Due Process-Attorneys’ Fees
The relevant federal legislation concerning pupils with disabilities is the Individuals with Disabilities Education Act of 1990 (IDEA). The federal legislation has been codified in the New Jersey Administrative Code at title 6 Chapter 28-1 et seq. under authority of N.J.S.A. 18A:46-1 et seq.
To qualify for federal assistance, states must:
“… assure all children with disabilities the right to a free appropriate public education . . . for all children with disabilities between the ages of three and twenty-one, . . . regardless of the severity of their disability, . . .”
Under the New Jersey Administrative Code:
- A child with a disability has the right to a comprehensive evaluation with proper notices to and consent from parents.
- Parents have the right to examine all school records, see the results of evaluations and have the evaluations explained.
- If parents disagree with the evaluations, they may request an “Independent” evaluation that will be supplied at no cost, unless the school initiates due process.
- After reviewing all evaluations, a determination is made as to whether the child is eligible for special education and related services.
- If the child is determined “eligible,” an Individualized Educational Program Plan (IEP) must be developed within 30 days of the eligibility determination and implemented within 30 days after the IEP is developed.
- The IEP must be implemented in a placement that is the least restrictiveenvironment appropriate to the child’s needs.
- The child is to be re-evaluated every three years or sooner if circumstances require.
If parents disagree with a determination of referral, eligibility, classification, program (IEP) or placement, they may request an impartial due process hearing. At a due process hearing in New Jersey:
- The parent can present evidence, cross-examine school witnesses and compel witnesses to testify.
- A transcript of the proceedings must be available.
- The decision of the administrative law judge must be supported by findings of fact.
- Such decision is appealable to the Superior Court of New Jersey or the U.S. district court.
- Reasonable attorneys’ fees are recoverable, in the discretion of the court, if the court rules in the parents’ favor.
See N.J.A.C. 1:6A for complete information regarding requests for due process and emergency relief.
Parents have the right to inspect, review and copy any of their child’s school records and to request changes or deletions of information contained in such records. If the school refuses, parents have a right to a hearing before a school official who does not have a direct interest in its outcome. If the decision denies the requested change or deletion, the parents still have the right to add a statement to the record.
QUALITY OF SERVICES
Once students have been identified, evaluated and classified they must be provided with a free and appropriate public education (FAPE) in the least restrictive environment. The U.S. Supreme Court in Board of Education v. Rowley ruled that a FAPE required only an “adequate” education and described “adequate” as being personalized instruction and support necessary for the pupil to benefit educational. The Rowley court indicated that the question for the court is whether ” . . . the individualized educational program . . . [is] reasonably calculated to enable the child to receive educational benefits.” Although this federal floor of opportunity appears minimal (and it is), individual sates may require a higher standard. In the past, New Jersey specifically required a higher standard, and, even though the Administrative Code has been amended, it may be argued that New Jersey still requires a higher standard. Although this issue has yet to be resolved, special education pupils are entitled to the “most appropriate” program where they can be assured the “fullest possible opportunity to develop [their] intellectual capacities” “to function politically, economically and socially in a democratic society.”
[Note: Since this article was written many legal precedents have supported the fact that individuals in special education are entitled to a “meaningful” benefit from the educational opportunities to which they are exposed. Also, “meaningful” is to be determined on a student-by-student basis, taking into consideration the unique potential of the student involved.]
An observation that should not be overlooked is that the right to a FAPE is one of those so-called budget-busting, economy-destroying, democracy-defeating “unfunded mandates.” In other words, our children are entitled to an “adequate” program regardless of availability or cost. If a program does not exist, it must be created. Students from New Jersey are having their needs met in placements throughout the United States. Low-incidence (rare) populations often require creative and costly solutions to obtain an adequate response to their unique needs.
LEAST RESTRICTIVE ENVIRONMENT
The federal IDEA provides that each state establish:
Procedures to assure that, to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled . . ..
This mandate, often referred to as the “least restrictive environment” (LRE) requirement or “inclusion,” is probably the most controversial current issue in special education. For many years, this requirement was seen to be satisfied by providing mainstreaming opportunities for classified pupils who received academics in a self-contained special education classroom and were integrated with children who were not disabled in non-academic activities such as art, music, lunch, gym and recess. In the ’80s, courts started to struggle with the necessity to develop a formula or test for determining whether or not the “least restrictive environment” requirement was being met.
The most recent and also most succinct and parsimonious of these decisions is theHolland case. The court in Holland articulated a four-factor balancing test to be applied if a self-contained special education environment is to be legally (and pedagogically) supportable:
- The Education Benefit Test: Are the educational opportunities available in the self-contained environment better than those available in a regular classroom?
- The Non-Academic Benefit Test: Are the opportunities available in the self-contained environment more conducive to developing non-academic skills such as social skills, communications skills and self-confidence?
- The Impact on the Regular Class Test: Does the child pose a detriment to the education of the other children in the regular class because he or she is disruptive, distracting or unruly, or because he or she takes up so much of the teacher’s time that the other children would suffer from a lack of attention?
- The Cost Test: Will the cost of placement in a regular class so burden the district’s funds that services available to the other children are adversely affected?
Although some questions may still exist, the Holland court has provided guidelines that are understandable and easily implemented.
Clearly, the courts have taken a position that assumes the correctness of the most inclusive option. The Holland tests place the factual burden on the party seeking to justify the more restrictive setting. Interestingly, in cases where the school district seeks the more inclusive placement, concerns regarding impact on the regular class and cost are virtually moot, and the district need only show that the inclusive program provides an educational benefit and is not a detriment to developing non-academic skills.
The policy of the Office of Special Education and Rehabilitative Services (OSERS) has been addressed by Judith E. Heumann, the assistant secretary, who has clearly stated that inclusion is a placement “option” and that “…the continuum of alternative placements is an integral part of the regulations.” Tom Hehir, the director of the Office of Special Education Programs (OSEP), stated that “…each public agency [is required] to make a full continuum of alternate placements available to meet the needs of children with disabilities for special education and related services.”
In the long run, the storm of inclusion will leave in its wake successful experiences with in-class support strategies, collaborative teaching methods and a more sensitized regular education environment. Inclusion is neither an evil plot of a budget-driven bureaucracy nor is it an educational panacea. Inclusion is simply the least restrictive environment at one end of a continuum of special education options.
Even if a child is found not eligible under IDEA, the requirements of Section 504 of the Rehabilitation Act of 1973 may be applicable. Section 504 prohibits discrimination on the basis of disability. A person with a disability under Section 504 is defined as any person who has a physical or mental impairment that substantially limits one or more “major life activities”. “Major life activities” are defined to include functions such as seeing, hearing, breathing, and learning. In many cases, for instance, Attention Deficit Disorder (ADD) may constitute a substantial impairment of a major life activity (learning). Under such circumstances, Section 504 requires that the school district provide special education or related aids and services necessary to meet the needs of the ADD student as adequately as it meets the needs of non-disabled students.
If a parent believes a child has a disability that substantially limits learning and requests the school district to evaluate, Section 504 obligates the district to do so. The district can refuse only if it does not believe the child suffers a “substantial impairment” of a “major life activity”, in which case it must notify the parents of procedural safeguards and their right to initiate due process.
Section 504 can be summarized with the following key words and phrases:
- Substantial Impairment
- Major Life Activity
- Free and Appropriate Public Education (FAPE)
- Office of Civil Rights (OCR)
If a pupil has a disability (1) that results in a substantial impairment (2) of a major life activity (3) including learning, (4) and the pupil is otherwise qualified (5), the school cannot discriminate (6) and fail to provide a free and appropriate public education (7) without being subject to investigation by the U.S. Department of Education Office of Civil Rights (8).
Section 504 applies to any educational institution receiving federal funds and forms the basis for accommodations in college and other post-secondary environments.
The Lascari court found that both parties (parent and school board) had an “interest in assuring that a handicapped child receives an appropriate education” and held that “the adversary nature of the proceedings [due process] should yield to obtaining the right result for the child.” If this is true, i.e., the goal of all involved is to gain the right result for the child, why then are there so many disputes? Why then do parents suffer such anxiety? And why then do child study teams feel it necessary to have a united front to defend against parents?
The truth is that there are many subtle and not-so-subtle factors influencing any interaction between parent and school that cause each to have a separate agenda. Therefore, in order to have successful communications, it is necessary for at least one of the parties to recognize and meet the needs reflected in the other party’s agenda. To avoid unnecessary disagreement, the factors influencing the perspective of each party must be better understood.
Good of the Whole v. Good of the Individual
In the legal profession, an attorney would not be allowed to represent a stockholder in a suit against a corporation that he or she also represents. It is clear that the attorney’s duty to the corporation may conflict with the interests of a single stockholder. Yet we invest the professionals working for the school district with the impossible task of setting aside their responsibility to all students when recommending an appropriate program for a single student.
Money, time, facilities, personnel and training are some of the resources in limited supply that school personnel are expected to make do for all students, as best they can. When a child requires more than an equal share of such resources in order to obtain an “adequate” education, the inclination of school personnel is to consider the needs of all students, while the parents are seeking what is necessary to meet the needs of only their child. Clearly, “fair” treatment and “equal” treatment are different concepts. In other words, it is fair to treat to treat each child according to his or her needs. To treat each child equally is to provide more than necessary to some and less than necessary to others. Although resources, for all practical purposes, are viewed by the school district as finite, the law views the needs of the child to be paramount and assumes that resources are infinite. An adequate program must be provided to every child regardless of complexity or cost.
Often parents are allowed to harbor unrealistic expectations. It is easier to say something positive to a parent. In the short run, their needs are met- their child’s potential will be realized because they are assured that the program offered will provide everything necessary for their child to succeed in life. A year later when their child doesn’t appear to have any friends, is being teased in school and is becoming frustrated, angry, oppositional and depressed, is it any wonder that parents blame the school that promised only “goodness and light”? Expectations must be realistically addressed. The child’s potential and rate of progress in all areas of academics, as well as social and emotional domains, must be assessed. Unrealistically high expectations steal from the parents the opportunity to share in the joy of their child’s accomplishments. Instead of seeing accomplishment, they perceive failure. Their behavior reflects this perception, and the child interprets it as a reflection of disappointment caused by the child’s failure. It is better to be underestimated and to be praised for unexpected success than to be overestimated and be criticized for unexpected failure.
Subtyping and Comorbidity
A child who is said to have a learning disability may have one or more of a myriad of problems impacting on his or her ability to learn. In New Jersey, such a child is usually classified either neurologically impaired (NI) or perceptually impaired (PI). Unfortunately, the disability involved is rarely sufficiently identified to justify a program any less generic than the classification. For example, a dyslexic learner typically has a relative difficulty with learning to read and spell as compared to learning mathematics, has good visuospatial skills and responds well to visual and tactile-kinesthetic stimulation and poorly to auditory stimulation. A so-called non-verbal learning disabled child, on the other hand, typically has relative difficulty in mathematics as compared to reading and spelling, has poor visuospatial skills and responds poorly to visual and tactile-kinesthetic stimulation and well to auditory stimulation. Unfortunately, these two very different children often end up in the same class with the same teachers. It is up to evaluators, teachers and parents to expand their understanding of learning disability subtypes, the impact of comorbidity (more than one disability occurring simultaneously) and the necessity of focused programs to respond to the unique needs of the child. Without such knowledge, schools, with only the best of intentions, find it impossible to appropriately meet the needs of many children who are eventually said to have “fallen through the cracks”. Child study teams must address the issue of diagnosis, sub typing and focused programming. In Flowers v. Martinez Unified School District, the court held that “Without an appropriate diagnosis of Kristin’s special needs, there could be no formulation of an IEP that would address those special needs”.
Much of the compromised potential of our children with learning disabilities, both as a result of avoidable academic and vocational impact and as a result of a consequent emotional impact or overlay, can be avoided. In large measure, the fault appears to lie in a system of education that evidences intrinsic weaknesses that interfere with the appropriate delivery of services. Three of these intrinsic weaknesses require mention:
- Schools are required to quantify or establish concrete, measurable growth in pupil achievement. Pre-testing and post-testing are applied to virtually every increment of educational experience to quantify measurable growth. This quantitative accountability causes administrators and teachers to de-emphasize efforts at promoting skills that are not readily quantifiable (e.g., ethics, problem solving, decision making), as well as strategies for the acquisition of social competencies and nonverbal literacy.
- A related weakness is the slice-of-time perspective adopted by educational evaluators. Our current procedure of multidisciplinary evaluation focuses on what is, with limited concern for prognosis. Such evaluations are motivated by a desire to establish concrete baselines in order to quantify the success of remediation. Possible interventions are overlooked because prognosis is ignored.
- The aptitude-achievement discrepancy formula used to determine eligibility for special education services is predicated on school failure. This threshold of failure must be crossed before services can be delivered. Parents constantly complain that their child has a documented disability but can get no service because he or she gets passable grades. By the time the child fails, it may be too late to preserve the child’s full potential.
This combination of weaknesses has established a dynamic that ignores the evaluation of “risk”. A problem must exist, not merely be possible or even probable, before resources can be devoted to remediation. Our system of education provides greater rewards to those who cure than to those who prevent, reversing Ben Franklin’s axiom that “an ounce of prevention is worth a pound of cure”.
Due Process-Attorneys’ Fees
Due process and the availability of attorney fee reimbursement to a prevailing parent are elements of IDEA that reflect its civil rights characteristics. These elements level the playing field to ensure equal protection under the law for a person with disabilities to receive a free, appropriate public education. The procedure for resolving disputes involving special education issues is known as “due process.” Due process is not a tool to be lightly engaged; it should be used only when there is reasonable dispute as to well-defined issues. Ideally, two parties of good will should be seeking resolution of an issue for which there is no clear answer. Egos, professionalism, blame and guilt have no place being challenged in a forum where the goal is to obtain “the right result for the handicapped child.”
Clearly, the educational needs of a special education child are dynamic. When compliance with a particular response to a child’s needs is forced against the will of one of the parties (parents or school), the party forced to comply is likely to become focused on proving the inappropriateness of the compulsion. The concomitant lack of commitment to success and intransigence to modification and change virtually ensure a detriment to the child. Therefore, prematurely involving due process may do more harm than good. Every effort should be made to mediate a solution that will allow for mutual commitment to success and a continued willingness to respond to the changing needs of the child. Appropriately motivated independent professionals and advocates can be very helpful in communicating between the parties. They can deal with the jargon, identify and respond to both parties’ concerns and preserve the self-worth of all involved. By doing so, they encourage and ensure meaningful communication. Unfortunately, some advocates feel that due process is the only tool available to resolve disputes, in which case their victories may be pyrrhic and short-lived, and the needs of the child may have been sacrificed to the thrill of combat.
Attorney’s fees are available to the parent who prevails in a due process case. It is a matter of fact that education cases are labor-intensive and that few parents can afford to pay the fees generated in such a case. Therefore, if a case is properly mediated, an attorney is likely to have to compromise his or her fee or wait for payment. The effect of the current law that awards attorneys’ fees to the parent’s attorney to be paid by the school district only after due process is engaged promotes due process and discourages mediation and early compromise. An attorney who automatically initiates due process and refuses to apply communication and negotiation skills to effect a mediated settlement does so at the expense of the child client.
In order to advocate successfully for yourself, your child or your client, you need a thorough knowledge of the following: (1) the law; (2) the individual (weaknesses and strengths); (3) the technology (diagnostic knowledge as well as intervention and remedial strategies); and (4) the service-delivery system (weaknesses and strengths).
The easiest of these is knowing the law. The technology, i.e. knowing how to define the problem and what to do about it, is exploding. Federally funded longitudinal studies are reaping a harvest of knowledge at a rate heretofore unparalleled. No longer are we dealing with controversial flashes of insight. We now have significant understanding as to autistic spectrum disorders, dyslexia, nonverbal learning disabilities, attention deficit disorder subtypes, executive function deficits, etc. We know about the synergistic effect of comorbidity, and we are learning about the link between learning problems and behavioral development. Every day brings word of something new and exciting to be added to the arsenal of tools necessary to realize the potential of all persons with disabilities.
A major frustration facing educators, parents and advocates is the current gap between our technological knowledge and our service-delivery potential. In many cases we have the cure, but cannot get the cure to the patient.
Parents, educators and advocates must work together to address the weaknesses in the system and narrow the gap between technology and service-delivery. We are all advocates seeking “the right result for the child.”