Special Education Law January 14, 2010

1. Special Education Law January 14, 2010 • Housekeeping Items • Test Your Knowledge • Judicial and Legislative History • Mills Analysis • Overview of IDEA • Next session/group assignments

2. Test Your Knowledge • American Legal System • Sources of law? • Hierarchy of laws? • Function and power of courts? • Understanding Judicial Opinions • Goal when reading a case? • Define case analysis. • Your method of extracting significant information from case?

3. JUDICIAL AND LEGISLATIVE HISTORY • Civil rights for people with disabilities is outgrowth of civil rights movement for people of color. • Judicial Developments • Brown v. Bd. Of Education of Topeka, 347 U.S. 483 (1954), rules that “separate but equal” doctrine as applied to public education is denial of equal protection of the laws (14th Amendment of US Constitution) • First application of Constitutional protections (14th Amendment equal protection) to the education or failure to educate students with disabilities heard in federal courts in PARC v. Penn, 334 F.Supp. 1257 (E.D.Pa. 1972) • Closely followed by Mills v. Bd of Education of DC, 348 F.Supp. 866 (D.D.C. 1972) which brought case under due process clause of 14th Amendment.

4. History continued • Cases brought by residents of state institutions: • Mentally retarded persons involuntarily confined to state institution had a Constitutional right to habilitation. Wyatt v. Stickney (Alabama 1972) • Humane psychological and physical environment ordered. • Individualized habilitation and training plan required. • Sufficient qualified professional and paraprofessional staff in to deliver training. • Extensive protections ordered to ensure that individuals were afforded basic needs—e.g., adequate food, LRE, transition, minimal physical standards, etc. • Court appointed a “Human Rights Committee” consisting of 7 members, including resident with mental retardation. • People with MR have Constitutional right to protection from harm. NY State Assoc. for Retarded Children v. Carey (consent decree 1975) • Willowbrook forbidden from implementing seclusion, corporal punishment, medical experimentation and routine use of restraints. • Mandated individual plans for education, therapy, care and development of each child. • Establishment of a Consumer Advisory Committee of parents, community leaders, residents (current and former) to monitor.

5. 14th Amendment • [N]or shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. • As applied to public education—states, if they have compulsory education laws—are Constitutionally required to provide public education to all children (education constitutes both liberty and property interests under legal analysis) unless state can justify legitimate reasons it cannot do so. • AS GENERAL RULE: Financial defenses to providing education have failed in the courts.

6. Mills v. Bd of Education, D.C., 348 F. Supp. 866 (D.D.C. 1972) • Title and Citation • Relevant Facts • Disputed issue or issues • Rule/holding by court • Legal Reasoning used • Significance of the case

7. FACTS • 7 children (with variety of disabilities) sued DC public schools on behalf of themselves and all others similarly situated (class action). • Asked court to enjoin (stop) the public schools from denying them public education, and • Asked for immediate and adequate education or alternative education. • Plaintiffs argue that DC public schools failed to provide education and/or removed students without due process. • DC Schools admitted a year earlier that it had failed in its “affirmative duty” to provide public education and due process and signed consent decree to do so. • The defendant school district had not complied with the decree.

8. ISSUE(s) • Defendant has failed to comply with the consent order (in 1971) and therefore, should not it comply or be held in contempt?

9. HOLDING • Yes. D.C. Public Schools should comply with the consent order/decree from 1971. • “The applicable statutes and regulations and the Constitution of the United States require it.”

10. LEGAL REASONING • DC law (applicable statutes and regulations) • requires that children be educated between ages of 7-16. • Child may be excused only when “upon examination…is found to be unable mentally or physically to profit from attendance. • If … child could benefit from specialized instruction adapted to his needs, he shall attend upon such instruction.”

11. Reasoning…continued • Constitutional Protections of 14th Amendment (US Constitution): • Equal protection • Due Process

12. SIGNIFICANCE ?

13. Federal Legislative Developments • 1965 – Elementary and Secondary Education Act (ESEA) provides money for education of children with disabilities • 1966 – Amendments to ESEA (Title VI) adds funds for programs • 1970 – Education of the Handicapped Act (EHA) replaces Title VI (many IDEA principles) • 1973 – Rehabilitation Act of 1973 (section 504) • 1974 – ESEA amended by the Education Amendments of 1974 which created the Bureau of Education for the Handicapped and provided variety of funding to encourage states to provide educational services. • 1975 – Education for All Handicapped Children Act (EAHCA) 94-142; funding provided to states that follow extensive due process procedures and ensure all children with disabilities who require “special education” receive FAPE • 1975 – Developmental Disabilities Assistance and Bill of Rights (DD Act)

14. 1986 – Amendments to the EAHCA to include funding for early intervention (Part H/C) and attorneys’ fees authorization • 1990 – Amendments to the EAHCA; renamed IDEA and substantive changes to the law. • 1990 – Americans with Disabilities Act (ADA) expands Rehabilitation Act jurisdiction. • 1997 – IDEA Amendments included several significant changes. • 2002 – ESEA reauthorized as the No Child Left Behind Act of 2001 which creates extensive accountability provisions that include children with disabilities • 2004 – IDEA Amendments (renamed IDEIA) signed by President Bush • 2006—IDEA Regulations released (WACs in 2007) • 2008—IDEA “regulatory amendments” released in several substantive areas

15. Washington State Legislative Developments • 1943 – Schools for Handicapped Children Act passed; created division in OSPI • 1971 – Special Education Law, RCW 28A.155 passed. • It is the purpose of . . . [this statute] to ensure that all children with disabilities . . . Have the opportunity for an appropriate education at public expense as guaranteed to them by the Constitution of this state. RCW 28A.155.010 • Appropriate education is defined as “an education directed to the unique needs, abilities and limitations of children with disabilities.” RCW 28A.155.020 • In most instances, state law parallels the language in federal law.

16. Overview of IDEA • What is the IDEA? • What is the purpose? • Who is eligible/protected by IDEA? • Age criteria • Disabilities • Must require special education and related services

17. Purpose of IDEA (as of 2004) • (d) Purposes of this title are— • (1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.

18. Who is Eligible/Protected? ?

19. Major Principles of IDEA (Part B) • Identification and Evaluation (child find) • Zero Reject • FAPE • LRE • Procedural Protections • Parents’ role in education • Outcomes/Transition

20. Enforcement of IDEA • Federal Department of Education conducts audits of states to determine compliance. • OSEP issues guidance letters and responds directly to individuals on issues of law (not fact). • SEA must monitor LEA use of IDEA funds • SEA must respond to citizen complaints, due process complaints, and court actions. • Judicial involvement once administrative processes are exhausted (as general rule must exhaust before court filing).