The Law and Special Education

The Law and Special Education Mitchell L. Yell

Chapter One Introduction to the American Legal System

The American Legal System: Federalism • The American system is a federal system, where the government of the U.S. is made up of the states joined under a central federal government. • The Constitution grants certain powers to the national government, and the rest are left to the states. • The Constitution does not include anything regarding education, so education is governed by the laws of each state. • The federal government is still involved in the progress and growth of education, indirectly through the Constitution’s general welfare clause. • The federal government provides indirect assistance to education by offering categorical grants to states.

The American Legal System: Sources of Law There are four sources of law, constitutional, statutory, regulatory, and case, all of which exist on the federal and state level. Constitutional Law: • The U.S. Constitution is the basic source of law. • There is a separation of powers between the legislative, executive, and judicial branches • Federal statutes are based on provisions of the Constitution. For example Article I, Section 8 is the basis for special education provisions. • The Constitution can be amended by the Congress and the states. • The 14th Amendment has become the constitutional basis for special education.

The American Legal System: Sources of Law State Constitutions: • Each state has its own constitution, which tend to be more detailed than the U.S. Constitution. • States have educational mandates in their constitutions.

The American Legal System: Sources of Law Statutory Law: • Congress has the authority to make laws. • Laws made by Congress or state legislatures are called statutes. • The process for enacting laws is long and complicated. • Enacted laws (or statutes or acts) is designated a public law (P.L.) if it is intended to apply generally. The laws receive a name and a number. • Most statutes concerning education are state laws.

The American Legal System: Sources of Law Regulatory Law: • The statutes passed by Congress tend to be broad and general in nature. • Congress delegates power to administrative agencies to create regulations (or rules or guidelines) to provide specifics for the statutes. • Violating a regulation is as serious as violating the law. • The administrative agencies usually can make rulings on the law and its regulations.

The American Legal System: Sources of Law Case Law: • Case law refers to the published opinions of judges that arise from court cases where they interpret statutes, regulations, and constitutional provisions. • The U.S. legal system places great value in these decisions and the legal precedents they establish. • The emphasis on case law is from the legal tradition established in England called common law. • Common law consists of court opinions in specific disputes. • Many areas of law consist largely of common law or case law, especially in special education.

The American Legal System: Sources of Judicial Power Horizontal Power: • Supreme Power: In some areas of decision making, the power of the judiciary is virtually supreme, so the courts act as the ultimate interpreter of the Constitution. • Limited Power: Judicial decisions involve the interpretation of laws of the legislative branch, but the legislature can change the law if it disagrees with a court’s interpretation.

The American Legal System: Sources of Judicial Power Vertical Power: • This regards the hierarchical structure of the system. • The levels, from lowest to highest, are the trial court, the intermediate appellate court, and the court of last resort or the supreme court. • There are 51 jurisdictions in the U.S.: the federal courts and the 50 state courts. • Lines of authority exist within the system, but they do not cross jurisdictional lines.

The American Legal System: Court Structure The general model of the hierarchy of courts applies to both the federal system and state jurisdictions. Trial Court: • This is the first level in the court system, with the purpose of fact-finding. • Once the facts of the case are determined, they can not be appealed. • Issues of law also arise, but the rulings of the judge on the law can be appealed by a higher court. • There are almost 100 trial courts, called U.S. District Courts, in the federal judicial system. • In special education cases, fact finding is conducted during the administrative review process, so the trial court determines if the law was applied correctly.

The American Legal System: Court Structure Intermediate Appellate Court: • When litigants appeal the trial court decision, it is usually heard by the intermediate appellate court. • The appellate court reviews the trial court’s decision on the issues of law, to determine if the decision should be affirmed, reversed, or modified. • Decisions of the appellate court develop law through the creation of precedents. • The appellate court does not retry the case. • Each federal appellate court has 12 judges, but cases are usually heard by only 3 judges. • There are 13 U.S. Courts of Appeals. • The 13th, called the Federal Circuit, hears appeals throughout the country on specialized matters.

The American Legal System: Court Structure Court of Last Resort: • This is called the Supreme Court in most jurisdictions. • They cannot hear every case that is appealed, so they determine which cases they will hear. • The court has an appellate function, so its decisions are important sources of law. • The U.S. Supreme Court is the highest court in the country. • The Supreme Court files petitions to ask the Court to consider the case, and the Court will either grant or deny the petition. • The U.S. Supreme Court grants petition to less than 1% of cases.

The American Legal System: Precedence • The American system of law follows the doctrine of stare decisis, or precedence, where courts are expected to follow the decisions of courts in similar cases. • A decision by a higher court controls the decisions of lower courts in the same jurisdiction, which is controlling authority. • Persuasive authority comes from a court that is not controlling. • A court does not have to follow the precedent, but does so because it is persuaded by the decision. • Only published cases can be used for precedence • All of the decisions of the U.S. Supreme Court are published.

The American Legal System: Holding and Dicta • The holding of the case is the actual ruling on a point or points of law. • The dicta consist of the rest of the decision, judicial comments, illustrations, speculations, etc.

The American Legal System: The Opinion • A written opinion usually includes a summary of the case, a statement of the facts, an explanation of the court’s reasoning, and a record of the decision. • It also includes the author’s name and names of justices who agree with it. • A concurring opinion is when a judge agrees with the majority of the court on the ruling, but not with the reasoning used to reach the ruling. • A dissent is when a judge does not agree with the results reached by the majority. • Dissents can dissuade the majority justices from judicial advocacy, encourage judicial responsibility, and appeal to outside audiences for correction of perceived mistakes by the majority. • Dissents are sometimes used to appeal to a higher court or legislature to correct the court’s action.

The Law and Special Education • The four branches of the law interact, and laws are sometimes made in one branch in response to developments in another branch. • In the development of special education law, actions in the courts created the right to a special education for children with disabilities under the 14th Amendment. • Following this, Congress passed legislation to ensure the educational rights of children with disabilities, and regulations were made. • All states then passed state laws and created state regulations ensuring the provision of special education to qualified children. • Disputes have led to federal litigation to interpret the special education law. • Some litigation has led to more legislation, which has led to more litigation to interpret it. • The development of the law is cyclical, and that is how special education law evolves.

Chapter Two Legal Research

Legal Research • Legal research is the process of finding and understanding laws that govern activities in our society. • Special education is among the most frequently litigated areas in education, so there is an extensive body of cases interpreting the rules and regulations involved. • Legal research requires the understanding of a variety of resources.

Primary Sources • Primary sources are actual statements of the law. • Enormous amounts of primary source materials available are issued chronologically rather than by subject.

Primary Sources:Statutes and Regulations Federal Statutes • Statutes are organized by topic and are published in a series of volumes called the United States Code (U.S.C.). • The 50 titles are divided into chapters and sections. • Each title contains the statutes that cover a specific subject. • Title 20 contains education statutes • The U.S.C. is considered the official version of federal statutes, and is available on the internet. • There are also two annotated versions of the U.S.C., which contain information pertaining to each statute. • They are the United States Code Annotated (U.S.C.A.) and the United States Code Services (U.S.C.S.)

Primary Sources:Statutes and Regulations Federal Statutes, cont. • Since federal statutes are frequently amended, it is important to locate the most recent version. • A paper supplement, called a packet part, is included in the back of each book of annotated codes to update it annually. • If the statute being researched is recent or currently pending in Congress, it will not be available in the annual pocket part. • U.S.C.A. is updated between pocket part publications by its Interim Pamphlet Service. • Several methods can be used to find federal statutes.

Primary Sources:Statutes and Regulations Finding a Statute by Citation • A reference to a primary law source is a citation. • A citation tells where the law source is located. • The standard form for citations is the title number, letters referring to the code, the section number, and subsection.

Primary Sources:Statutes and Regulations Finding a Statute by Popular Name • The statute can be found in the Popular Name Table • The Table provides the following information: the popular name, public law and statute at large numbers, date of passage, and the title and code sections. Finding a Statute Using the Annotated Code Index • The General Indexes to the annotated code may be used to locate the statute if the subject of the statute is known. • Every title of the annotated codes also has an index in the back of the final book in the series of the title.

Primary Sources:Statutes and Regulations State Statutes • Some states organize their statutes in volumes according to subject by name • Most states assign a title or chapter and section number to each subject, similar to the U.S. Code. • Most collections have indexes for all laws and for each subject. • State statutes are often changed. • All stated have the unannotated versions of their codes available on the Internet in some format.

Primary Sources:Statutes and Regulations Federal Regulations • Federal administrative agencies produce regulations to implement and enforce federal statutes. • These regulations are published in the Federal Register and the Code of Federal Regulations (C.F.R.) Finding Regulations by Citation • Regulations also have citations that tell where the regulation is located. • The citation is in standard format, which is the title number, C.F.R., section number, and subsection letter and number.

Primary Sources:Statutes and Regulations Finding Regulations by Subject • The Index and Finding Aids volume of the C.F.R. can be used to search by title. • A keyword search can be conducted on the website at www.gpoaccess.gov/cfr Updating Regulations • Regulations are often changed in some way. • To check if a regulation is up to date, consult the monthly pamphlet entitled Code of Federal Regulations List of Sections Affected (C.F.R.-L.S.A.) or check the website.

Primary Sources:Statutes and Regulations State Regulations • State regulations can be difficult to locate. • Special education regulations are often found under the category of education regulations. • In many states, regulations are published in loose-leaf form by the promulgating agency. • Unannotated state regulations and registers are also available on state government websites.

Primary Sources:Case Law • An important part of legal research is finding cases that interpret statutes and regulations • Cases are published in volumes, called reporters, which are available in all law libraries

Primary Sources:Case Law Federal Cases • There are no official publications by the government for federal district or appellate court decisions. • West publishes reporters on decisions of the lower federal courts, and this information is located in electronic databases. • The published decisions of the U.S. District Courts are collected in the Federal Supplement. • The published decisions by the U.S. Court of Appeals are collected in the Federal Reporter.

Primary Sources:Case Law Federal Cases, cont. • The complete decisions of the U.S. Supreme Court are published in three sources: • United States Report (U.S.) • Supreme Court Reporter (S.Ct.) • United States Supreme Court Reports, Lawyers’ Edition (L.Ed.) • The last two are unofficial publications, which include editorial enhancements

Primary Sources:Case Law Federal Cases, cont. • During the lag period between the date the case is decided and when it is published, new cases can be located in weekly updates called advance sheets. • The most recent slip opinions may also be kept in the reference section of law libraries located within that particular court’s jurisdiction. • Opinions are accessible from official federal court websites daily.

Primary Sources:Case Law State Cases • The published appellate court decisions for each state can be found in that state’s official report. • West’s National Reporter System provides the published appellate cases for each state, including editorial enhancements. • Advance sheets containing recent cases are also provided for the regional reporters. • State court slip opinions can be found in local law libraries, directly from the state appellate courts, or from judicial websites.

Primary Sources:Case Law How to Find Cases • Cases are published chronologically rather than according to subject. Finding Cases by Citation • Every published decision has a citation that makes it possible to locate it in the reporters. • Citations follow a standard format of name of case, volume number, name of reporter, page number, and court and year of decision.

Finding Tools • Several finding tools are designed to help the researcher locate primary sources. • These tools include annotated codes, digests, indexes, legal encyclopedias, American Law Reports (ALR) annotations, and Shepard’s citators.

Finding Tools: The Annotated Codes • The annotated versions of the United States Code are powerful research tools. • These can contain valuable information such as legislative history, cross references to other federal statutes and regulations, references to the American Digest System topics and key numbers, citations to secondary sources, and abstracts of relevant cases that have interpreted a statute.

Finding Tools: The West Digest System • For each set of West’s reporters there is a corresponding digest. • These digests are alphabetical indexes to case law, arranging headnotes of cases by topics and key numbers. The West Topic and Key Number System • A case published in a West reporter follows a standard format. • First is the title of the case, followed by the docket number, the court in which the case was heard, and the date the court’s decision was handed down.

Finding Tools: The West Digest System The West Topic and Key Number System, cont. • Next is the synopsis of the case. • After this is the headnote section, which are editorial enhancements included one-sentence summaries of legal issues arising in a case. Each headnote appears as a boldface number, followed by a topic, an illustration of a key, and a key number. • The key number system allows for classification of different points of law. • Headnotes are grouped with similar legal topics from every published case that deals with that issue.

Finding Tools: The West Digest System Using the Digest System • A number of different digests are published by West. Each one contains headnotes for certain courts and is designed to fill a different need. • When using the digests to find cases, it is preferable to begin with the one that is narrowest in scope. • Those interested in federal special education cases should consult the Federal Practice Digest.

Finding Tools: The West Digest System Using the Digest System, cont. • To access the digest system, the researcher needs to determine the relevant topic and key number(s). • The headnotes under each topic and key number are arranged by jurisdictions in chronological order, beginning with the most recent. • Cases can also be located using the descriptive word indexes, the table of cases volumes, and the words and phrases volumes.

Finding Tools: Shepard’s Citators • It is critical that the case of interest is still valid, meaning that it has precedential value and hasn’t been overruled or reversed. • A search of a case in Shepard’s citators will direct the researchers to other cases and secondary authorities that have cited in it. • The process of “shepardizing” is an essential part of legal research. • Although Shepard’s remains the only print legal citator system, it now faces competition online. • Shepard’s citators became available on the LexisNexis online database. • West Group introduced its own citator system, KeyCite, available exlusively online.

Finding Tools: Shepard’s Citators • Once a citation for a case is located in Shepard’s, the citatory lists every case that has referred to it. • Every case, important or not, that cites the case being researched will be listed. • This can lead to numerous listings, especially landmark cases that are cited frequently. • Shepard’s listings do not cumulate, so a researcher may need to consult a series of Shepard’s citators for full coverage of a case. • Shepard’s case citators are organized according to the reporters that publish the cases. • Shepard’s citators consist of page after page of columns of numbers and symbols. • Electronic citators have distinct advantages over Shepard’s citators in print.

Secondary Sources • Secondary sources are materials that describe and explain the law. • They are unofficial, so they have no formal authority, but may have significant persuasive authority. • Secondary sources have two functions: • to provide citations to primary source material • to introduce the researcher to a particular area of the law by explaining the issues involved • Secondary sources of information include legal encyclopedias, legal newspapers, legal periodicals and law reviews, loose-leaf services, and Internet resources.

Secondary Sources:Legal Periodicals and Law Reviews • Legal periodicals can be the best place to begin researching a legal issue, because of their extensive coverage and footnoting to primary authorities and other secondary sources. • Law reviews are periodicals that contain articles on legal developments, legal issues, historical research, and empirical studies. • Law review articles are often cited by legal scholars as well as by the courts and can have great persuasive authority. • Many law schools publish one or more specialized academic journals in addition to general law reviews. • Some examples are: Journal of Law & Education, Index to Legal Periodicals (ILP), Current Law Index (CLI)

Secondary Sources: Legal Periodicals and Law Reviews • There are also online databases available to university faculty and students using legal periodicals to research particular legal issues. • Many law reviews are now maintaining a web presence and including the full text of articles from recent issues on their websites. • Shepard’s citators can be used to find journal articles that cite a particular case or statute and to shepardize law review articles.

Secondary Sources: Loose-Leaf Services • Loose-leaf services may contain analysis of legal issues and reprints of primary source material in specific subject areas. • They may serve as both a finding tool for primary authorities and as a secondary source. • A loose-leaf service is a publication that is issued in a binder with removable pages. • The information in these is current and much of the information needed to conduct research on a particular topic has already been compiled for the researcher. • No two loose-leaf services are the same.

Secondary Sources:Loose-Leaf Services Newsletter Loose-Leaf Services • A newsletter is issued regularly and added to the end of the binder. • Newly released material supplements the older material in this format. Interfiled Loose-Leaf Services • In this format, new pages are sent frequently for insertion into the binder. • The new pages are interfiled and the old pages are discarded.

Computers and Legal Research Legal research is rapidly becoming computerized. • The two primary computer-assisted legal research (CALR) systems are West’s Westlaw system and Reed Elsevier’s Lexis-Nexis. • Advantages: • contain enormous amounts of information • legal researcher can access the databases and navigate between them quickly • the databases are updated constantly • searching within particular databases is simplified • the ease of moving from one primary or secondary source to another through linksCALR does not replace traditional legal research. • CALR does not replace traditional legal research.

Computers and Legal Research The Westlaw and Lexis Nexis systems are organized into distinct databases. • The primary difference between traditional legal research and computerized research is full-text keyword searching. Steps for using CALR systems • The researcher first chooses the appropriate database within which to conduct the search. • The researcher formulates a query by determining the keywords needed in the documents retrieved. Both of these systems are now accessible to subscribers on their websites.

Legal Research Strategies Step 1: Analyze the Problem • The first task of the researcher is to analyze the problem and determine the most efficient manner to proceed. • The researcher must decide what legal sources will be needed to answer the question Step 2: Conduct the Research • The researcher must locate relevant primary source materials. • The most important element is the location of one good case on the subject being researched. • If a statute or relevant case citation is not available, the researcher should begin with secondary sources.

The Law and Special Education