A Primer of
Special Education Law: Teaching Exceptional Children
Black Enterprise, September 18, 2005
For more articles like this
parents often find special education law complex and confusing.
One way to get a basic foundation in special education law is to
start with the Top 5 case concepts from the Supreme Court. This
Top 5 represents 10 decisions; for some of these key concepts,
the Supreme Court has decided more than one case. Each of the
Top 5 is a core concept under either (a) the Individuals With
Disabilities Education Act (IDEA), which originated in 1975
under the name Education of the Handicapped Act and which
Congress most recently reauthorized under the name Individuals
With Disabilities Educational Improvement Act, or, less
importantly but not to be ignored, (b) the overlapping pair of
civil rights acts prohibiting disability discrimination-section
504 of the Rehabilitation Act and the Americans with
Disabilities Act (ADA).
Other Supreme Court cases arising in the context of special
education did not make this lofty list. More specifically, the
excluded decisions are (a) those that Congress subsequently
reversed by amending the IDEA (e.g., Smith v. Robinson (1984),
which concerned attorneys' fees and exclusivity, and Dellmuth v.
Muth (1989), which concerned 11th Amendment immunity; and (b)
those decisions in which the context was special education but
the issue was based instead on the Constitution (e.g., Zobrest,
1993), which held that a school district's provision of an
interpreter to a deaf student at a parochial school does not
violate the Establishment Clause).
Following are the top five case concepts from the Supreme Court.
They respectively illustrate and interpret these basic building
blocks of the IDEA: (a) the entitlement, for eligible children,
of "free appropriate public education" (FAPE), with particular
attention to what "appropriate" means; (b) the FAPE component,
in addition to special education, of "related services," with
particular attention as to where the line is drawn for the
medical services exclusion; (c) the high-stakes remedy of
"tuition reimbursement," with particular attention to the FAPE-based
formula, or criteria, for determining whether the parent is
entitled to this remedial relief in the wake of a unilateral
placement; (d) the issue of discipline in the form of a removal
from school for more than 10 days, with particular attention to
dangerous behavior; and (e) the requirements of section 504 and
the ADA for students who are not eligible under the IDEA, with
particular attention to the special meaning of "disability" and
"reasonable accommodation" under these sister statutes.
1. Rowley: FAPE
In its landmark decision in Board of Education v. Rowley (1982),
the Supreme Court faced the parents of a deaf child who wanted,
beyond the other services in her individualized education
program (IEP), and a district that refused to provide a
full-time interpreter for her academic classes; they argued that
"appropriate" in FAPE meant an entitlement to an equal
educational opportunity by hearing, or receiving via
interpreter, all the instructional information that her
nondisabled peers heard. Concluding that Congress's primary
purpose was to provide access, or a door of opportunity more
than a floor of opportunity, to students with disabilities, who
had a history of exclusion from public schools and special
education, the Court interpreted "appropriate" in the IDEA'S
FAPE mandate to have a dual meaning, which was primarily
procedural and only secondarily substantive. First, the school
district must provide procedural compliance with the Act.
second, the substantive standard is that the eligible child's
IEP must be reasonably calculated to yield educational benefit.
The result has been a focus on the many procedural requirements
of the Act, such as the various provisions for parental
participation, with a relatively relaxed standard for how much
FAPE the eligible child is entitled to. The Rowley child lost
her bid for interpreter services, but the numerous post-Rowley
cases have had varying outcomes based on the individualized
emphasis of the IDEA and the far from precise standards
established by the Rowley Court.
2. Tatro and Garret K: Related Services
In both Irving Independent School District v. Tatro (1984) and
Cedar Rapids Community School District v. Garret F. (1999), the
two eligible children had severe physical disabilities, one
requiring clean intermittent catheterization and the other
requiring constant specialized nursing services. The defendant
districts did not dispute that what these children needed fit
under the broad definition of "related services" under the IDEA;
rather, they argued that these services fit within the
definition's express exclusion for "medical services" and, thus,
were not part of their FAPE obligation. In these successive
cases, the Court established a relatively clear boundary for the
medical services exclusion in the related services component of
FAPE: only if the service must be provided by a physician, it
fits in this exclusion. Thus, each of these two children won.
Although the determination of related services remains an
individualized matter, the key question is whether the child
needs the proposed service to benefit from special education. If
the answer is yes, the district must provide it as part of FAPE
unless only a physician may provide said service. Thus, the
traditional narrow meaning of education and the accompanying
concern with costs do not constitute the primary considerations
under the IDEA.
3. Burlington and Carter: Tuition Reimbursement
In two successive decisions (Burlington School Committee v.
Department of Education, 1985; Florence County School District
v. Carter, 1993), the Court had to balance the IDEA'S FAPE
obligation of school districts with the Act's "stay-put"
provision, which requires the child to remain in their pending
placement upon either party filing for a due process hearing,
and until the disputed issue is resolved. In each of these
cases, the parent unilaterally placed the child rather than
maintain the "stay-put," but the reason was that, in the
parents' perception, the district was not meeting its FAPE
obligation and, thus, should do so by reimbursing the parents
for the tuition of the unilateral placement. The district
disputed this requested remedy, and the lower courts were split
on the issue. In these two successive decisions, the Court
established a 3-step test for parents who unilaterally place the
child outside the district and seek tuition reimbursement: (1)
Was the district's proposed placement appropriate?; (2) If not,
was the parents' unilateral placement appropriate (but with
relaxed procedural standards for the parents); and (3) If so, do
the "equities," such as the reasonableness of the cost in
comparison to available private alternatives, warrant a
reduction or elimination of the amount sought? The initial
emphasis was on the district's FAPE obligation. The second
step's relaxed requirements for parents was based on their
disadvantaged, secondary position in terms of resources and
knowledge. The finishing addition of the equities put a
reasonableness boundary on both sides' conduct. The result has
been a multitude of tuition reimbursement cases, with the
parents taking a measured risk on the outcome depending on the
ultimate determination of this flowchart-like set of criteria.
4. Honig: Discipline
In Honig v. Doe (1988), the defendant district had suspended for
a long period of time two students with emotional disturbance
who had victimized their classmates with dangerous behavior that
related to their disability. Revisiting the exclusionary history
that led to the IDEA and the Act's procedurally prescribed
placement process, including the "stay-put" provision, the
Supreme Court ruled that school districts do not have unilateral
authority to exclude a special education student from school for
more than 10 consecutive days for conduct that was a
manifestation of the student's disability; rather, if the
parents do not consent to such a change in placement, the only
way under the IDEA was a preliminary injunction from a state or
federal court. More recent amendments to the IDEA have preserved
the Honig interpretation but have added refinements, such as
setting forth the criteria for determining whether the behavior
is a manifestation of the child's disability and providing
impartial due process hearing officers with authority to approve
45-day interim alternate placements where the student's behavior
poses a substantial danger to self or others.
5. Davis, Toyota Motor, and Other Decisions: section 504 and
The Court has issued various decisions that are applicable to
students with disabilities in K-12 schools, although none has
arisen in this specific context, in terms of the eligibility and
nondiscrimination requirements under section 504 and the ADA. In
Southeastern Community College v. Davis (1979), the Court
concluded that section 504 requires educational institutions to
provide "reasonable accommodation," not substantial
modification, to students who meet the three-pronged definition
of disability: (1) physical or mental impairment, (2)
substantially limiting, (3) a major life activity. In more
recent decisions, the Court interpreted the second and third
prongs of this definition rather narrowly (e.g.\, Sutton v.
United Airlines, 1999; Toyota Motor Manufacturing v. Williams,
2002); yet, the Court also interpreted "reasonable
accommodation" to require waivers in athletics (PGA Tour, Inc.
v. Martin, 2001). The result is that districts and parents must
consider the federal requirements not only under the IDEA, but
also the overlapping requirements under section 504 and the ADA.
For example, for students with IEPs who are otherwise eligible
to participate in interscholastic athletics, absolute rules,
such as No Pass, No Play, warrant careful consideration for
individualized waivers. Further for students who are not
eligible for IEPs under the IDEA, districts must have defensible
procedures for determining whether the child meets the section
504/ADA three-pronged definition of disability and, for if so,
providing FAPE-whether accommodations, such as extra time for
testing, or related services-typically via a Section 504 plan.
The remaining building blocks including the concepts of the
IDEA'S two-pronged definition of disability, its "least
restrictive environment" (LRE) presumption, and the availability
of attorneys' fees and compensatory education are found in (a)
the IDEA, which Congress has amended periodically, most recently
in the 2004 reauthorization; (b) its regulations, which are
currently in the proposal stage for the recent reauthorization;
and (c) thousands of published hearing officer and court
decisions. Various sources provide more detailed information
about the IDEA (e.g., the texts listed in Sullivan & Zirkel,
1998), and, to a lesser extent, section 504 and the ADA (e.g.,
Zirkel, 2000, 2004). Careful systematic study is both
appropriate and necessary for teachers and parents in special
education; for better or worse, the field is so legalized that
literacy must be both educational and legal. Although
specialized attorneys play an important role, the teachers who
provide the services and the parents of the children who receive
them need enough of the basic building blocks to be able to ask
the right questions, understand the answers, and recognize the
basic rights and duties under the IDEA, section 504/ADA, and the
related state special education laws.
Bd. of Educ. ν. Rowley, 458 U.S. 176 (1982).
Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 (1985).
Cedar Rapids Cmty. Sch. Dist. v. Garret R, 526 U.S. 66 (1999).
Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993).
Honig v. Doe, 484 U.S. 305 (1988).
Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883 (1984)
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979).
Sullivan, K. & Zirkel, P. A. Education law tests usage: Survey
results. Journal of Law and Education, 27, 423-430.
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).
Zirkel, P. A. (2000). section 504 and the ADA: The top ten
recent concepts/cases. West's Education Law Reporter, 147,
Zirkel, P. A. (2004). section 504, the ADA, and the schools.
Horsham, PA: LRP.
Perry A. Zirkel is a University Professor of education and law
at Lehigh University in Bethlehem, Pennsylvania. Dr. Zirkel has
written more than 1,000 publications on various aspects of
school law. He writes a regular column in Phi Delta Kappan,
another one for Principal magazine, and is a frequent
contributor to West's Education Law Reporter. He is an active
labor arbitrator and serves as co-chair of the special education
hearing appeals panel for Pennsylvania.
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