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Question:
I am a parent of a child who has just been found
eligible for special education services. When I talk with other
parents of special education students and with school officials they
are always talking about the "law and rules". What laws and rules are
they referring to? How do I become familiar with them?
Answer:
One of the reasons it can be difficult to understand "school law" is
that there are so many different sources of "laws and rules" that are
applicable to public schools. I have found it easiest way to explain
this to someone new to this area of the law is to first look at an
overview, and then look at each of the different sources of the laws,
starting with the federal level (Washington), then the state level
(Michigan) and ending with your local Intermediate School District and
local school board.
Part I will provide an Overview, while Part II will cover the role of
the federal government, Part III, the state government, and Part IV
the local ISD and school district, with some research tips, and
practical suggestions similar to what I provide to new clients of my
law office when I first meet with them.
PART I - OVERVIEW
The federal (US government), the state (Michigan government), and your
local school districts (your Intermediate School District and local
school board) all have varying authority to create law (or rules) that
depending on any given situation may be applicable to general and/or
special education students. While true "laws" are only created by
elected officials, the rules and regulations created by administrative
agencies to implement the laws in the right setting can also have the
power of a law.
Federal Level - On the federal level, the laws are created by the
elected Congresspersons and signed into law by the President. Many
laws condition the receipt of federal money on a state or local school
agreeing to meet certain conditions. That is one reason that many of
the laws that apply to public schools do not apply to private schools
that do not receive federal monies. However, other laws such as the
Americans with Disabilities Act (ADA) are designed to control
discrimination in public or school accommodations, so they may apply
to all schools, both private and public.
Most laws have companion regulations (rules) that are created by the
federal agency that is responsible for implementing a particular law.
As to laws relating to education, the federal agencies charged with
carrying out the law are generally the Department of Education or the
Justice Department.
State Level - On the state level, there also are laws relating to
education passed by the Michigan legislature and signed by the
governor. Some laws are designed to meet the funding requirements of
federal law so the state can qualify for federal funds (e.g. IDEA),
while others again are designed to control conduct. As on the federal
level, state laws generally have companion regulations, except the
Michigan Department of Education creates the regulations via a public
process called "rule making".
Local Level - On the local level, your local elected local school
board may adopt policies that are applicable to just your school
district or the Intermediate School Board (ISD) who may adopt policies
for the entire ISD. These policies are then implemented by the
superintendent and his or her administration.
Controlling Law and Regulation - Sorting out which law or rule
controls can be a problem and can result in some confusion. Simply,
while a local school district can offer more in terms of benefits or
protection than what the federal and state laws and rules/regulations
require, it cannot provide less. In turn, while the state can offer
more than what the federal government requires, it cannot provide
less. For many reasons, including drafting errors, attorneys for both
school districts and parents can spend considerable time and effort in
determining (and arguing) exactly which law or rule controls any given
situation.
Role of the Courts - When conflicts arise regarding the proper
application of the law or interpreting exactly what the legislature
intended when it passed a law, a parent or the school may elect to
have a court of proper jurisdiction interpret the law. The courts also
handle appeals from state level review in IDEA due process hearings
and appeals from decisions of local school boards. Exactly which
school districts will be affected by a court's interpretation of a law
depends on the jurisdiction of the court and the decision itself is
outside the scope of this answer.
Finding Applicable Law and Regulation - to be able to locate and have
a lay persons understanding of "the laws" that may be applicable to a
particular situation requires one to examine federal, state and local
laws and regulations:
Hope this helps your understanding;
John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com
Next week, Part II - Federal Role.
Education
Law Center, PLLC · 810-227-9850 ·
www.michedlawcenter.com
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