Background Our system of education is based upon legislative enactment’s and judicial interpretations which provide the framework for our daily operations (Alexander & Alexander, 1992).
It is necessary for school administrators to have an understanding of federal and state laws and judicial decisions which pertain to the daily operations of their schools. It is the school administrator’s legal knowledge which ensures that a school operates in accordance with the law. Principals are expected to know and follow the law. The Supreme Court has determined in Wood v. Strickland (1995) that a principal’s lack of knowledge of the law cannot be used as a defense for violating legal requirements. Among the legal expectations that principals encounter is the challenge of ensuring compliance with the highly procedural law governing special education. The law governing special education is changeable as it is subject to periodic review and amendment by Congress and interpretation by the courts. The public school administrator needs to be knowledgeable of special education law and to have opportunities for frequent updates on any changes or litigation trends. In addition to knowing the law, McCarthy (1992) suggests that it is the principal’s responsibility to train their staff in the law. A school staff which is knowledgeable of the law can protect the rights of students and avoid litigation. School administrators are responsible for using resources effectively for educating children. Failure to know the law can divert professionals’ time and energy away from learning as they prepare for litigation. Financial resources spent on legal costs are lost to the learning process. The history of special education is recent. Kirk (1962) reported that
... criticism. A legal education would give me tools to better use these abilities. I am not headed to law school on a ... than on the Why I Want to Go to Law School theme. You should try to relate your qualifications ... for is the kind who wants to go to law school but doesnt have any realistic idea of what ... as your sole reason for wanting to go to law school. If a parent truly was your inspiration, then ...
2 prior to the 1800’s, there were no educational provisions for the handicapped child. The mentally subnormal individual was generally relegated to an attic or the role of village idiot (p. 6).
Although there were earlier attempts to provide educational opportunities for children with disabilities, it was not until the passage of Public Law (P.L.) 94-142 that there was a congressional effort to establish a national standard and to assure all children with disabilities a free and appropriate public education. P.L. 105-17, the Individuals with Disabilities Education Act Amendments of 1997, was signed into law by President Clinton on June 4, 1997. The amendments and reauthorizations of this federal law add to the complexity of the challenge to current school administrators to remain knowledgeable of special education law. It is relevant to investigate school administrators’ knowledge of special education law and to study the factors which influence their knowledge of this law. As more special education students are served in regular education classrooms, many principals are facing increased instructional and procedural responsibilities. They need to be knowledgeable of this law in order to include students with disabilities in their initiatives while protecting their rights. The requirements for administrative certification in the commonwealth of Virginia do not include specific special education courses or subsequent course work or updates (Virginia Department of Education, 1993; 1998).
However, the state department of education is required to “establish procedures to fully inform parents and children with disabilities of educational rights and due process procedures” (Regulations Governing Special Education Programs for Children with Disabilities in Virginia, 1994).
... way to those with disabilities. “Special education teachers must be patient, able to motivate students, understanding of their students’ special needs, ... a teacher’s assistant at an elementary school for a special education class. Until I had that experience, I ... the concerned parents wondering how their child was doing in school. Parents are the ones who decide which programs they ...
Some parents of children with disabilities are becoming well informed when it comes to special education law. As the school administrator strives to improve school and community relationships, it is important that they also be fully informed of the law. A parent who believes that their child’s rights have been offended and, after talking with the principal, further believes that the principal is not informed and knowledgeable, is likely to share
3 these thoughts with others in the community. This is not the path to increasing positive school, community relationships. However, a principal who is knowledgeable of special education law is capable of understanding parental concerns in the context of compliance, contributing to positive community relationships. In recent studies, school administrators have demonstrated inadequate knowledge of special education law (Bagnato, 1990; Clark, 1990; Johnson, 1989; Theller, 1995).
At the same time, there is a concern that litigation is increasing in the area of children with disabilities. Statement of The Problem School administrators need to know the law. More students with disabilities are being educated in general education as a result of the least restrictive environment (LRE) clause of P.L. 94-142. As a result of the focus on the principal as the instructional leader, school administrators are responsible for leading school improvement (Clark, Lotto & McCarthy, 1980).
Principals must be knowledgeable of the law governing students with disabilities so that they can be free to include all students in school based initiatives. As instructional leaders, school administrators are responsible for the education of students with disabilities and this responsibility increases as more disabled students are served within the regular classroom setting (Burrello, Schrup, & Barnett, 1992).
Increasingly, students with disabilities are the responsibility of school building administrators. One impact of the 1997 Amendments to I.D.E.A. has been to expand the role of the school administrator in protecting the rights of these students. Leadership is needed to ensure opportunities are in place for the involvement of students with disabilities in the general curriculum [20 U.S.C. 1412(a)(5)]. As school administrators become knowledgeable of the current law, they can begin to shift from a focus on discipline with these students to a focus on instruction. The emphasis on improving instructional opportunities for students with disabilities is clear in the Amendments as well as the regulations. The Department of Education has issued Final Regulations (34 C.F. § 300 &
... funding, or just because children were not able go to school, education proved to be a major issue during the Great Depression ... 1930 and 1931, when conditions were at their worst. Many students did not have the right clothing, supplies, and textbooks because ... ' to hold 'em. She reckons she's carried out the law just getting' their names on the roll and running' 'em ...
4 303) in accordance with the 1997 Amendments to I.D.E.A. These regulations address the least restrictive environment more explicitly than ever before. Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled [§300.552(c)]. School administrators must be prepared to serve students with disabilities within their schools. The regulations also address the involvement of students with disabilities in the general curriculum in regular education classes. A student cannot be automatically pulled out of the regular classroom and assigned to a special classroom only on the basis of being found eligible for services as a student with a disability. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum [§300.552(e)]. The presumption that the student will be educated in the regular classroom requires careful consideration of supplemental aids and services as well as program modifications by the IEP team. Leadership is necessary to establish school wide expectations that students with disabilities have the right to be educated in regular classrooms.
In addition, the regulations require that students with disabilities be included in district and State-wide assessments (§300.138) and that regular education teachers participate on IEP teams [§300.344(a)(2)]. Teachers are looking to school administrators for leadership in making the necessary changes. School administrators need to be knowledgeable of special education law and regulations in order to provide the instructional leadership in their schools for students with disabilities and the educators who teach them. Also, as decentralization occurs in school districts, reliance on special education administrators for information and advice may diminish. The school administrator will have to respond to these changes by becoming more self-sufficient in special education. Finally, as litigation in the area of special education increases, it is practical and efficient for
... a broader education that accepts diversity. Public education, however, does not have as much ... its students work for their designated needs. The intellectual climate ata private school is more academically oriented than public schools. Private education provides students with ...
5 school leaders to be prepared with the knowledge needed to effectively resolve issues which arise with parents and child advocates.
Purpose This study examined the relationship between professional experiences of building level school administrators in Virginia and their knowledge of special education law as demonstrated by a score on a survey instrument. Professional experiences were divided into experience (years as a building level school administrator), training (number of courses completed, special education and school law), school level (elementary, middle, high), and position (principal or assistant principal).
Knowledge of special education law was defined by a survey developed by Hines (1993) and updated in areas of the 1997 Amendments to IDEA. By investigating professional characteristics, it was hoped that it would be possible to identify factors which contribute to significant differences in knowledge of special education law.
The Research Question The research question was, to what extent and in what manner can school administrators’ knowledge of special education law be explained based upon administrative position, school level, number of special education courses, number of school law courses, and years of experience? Definitions For the purposes of this study, the following definitions were used. School administrator was a principal or assistant principal assigned to an elementary, middle, or high school in the commonwealth of Virginia. Knowledge of special education law was the number of items correct on a survey of knowledge of special education law.
6 Special education law was the legislation and judicial interpretations of the legislation concerning the daily operations in the education of students with disabilities as provided for in the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (1994) and Public Law 105-17. Position was a respondent’s assignment as principal or assistant principal. Special education courses referred to the number of special education courses completed, graduate and undergraduate. Law courses referred to the number of school law courses completed, graduate and undergraduate. School level referred to current elementary, middle, or high school assignment as an administrator. Experience referred to the number of years of experience as a building level school administrator. Limitations In this study, legal knowledge was limited to special education law. Special education law was limited only to those areas which would apply to the daily operations of schools as those are the areas for which all school administrators need to be knowledgeable. This study was further limited to the school administrators in the commonwealth of Virginia. School administrators in regional schools, preschools, residential schools, and private facilities were not included in this study. Generalizing results should be limited by these factors. The researcher had limited control over the commitment to respond to the questionnaire. Follow-up activities were planned to encourage participation but the response rate was unknown until the completion of the study. In addition, it was possible that principals could delegate the survey completion to a staff member. If so, the results would not reflect the knowledge of the principal or assistant principal selected for the
... many ways that integrating student with severe disabilities or special needs can benefit all students. Students can learn proper interaction ... or medical assistance beyond traditionally offered education. In past years, special needs students have been over looked or their ... disabled students the opportunity to not fear students with disabilities and likewise. There are times throughout the school ...
7 sample. The researcher relied on professional interest in contributing to the field and on the honest, thoughtful responses of the members of the sample group. With respect to population validity, generalization of the results from the sample was strengthened by stratifying the respondents selected by wealth and region. The stratified sampling increased the chances that the sample was representative of the population studied. Special education law is not static. It changes as it is further clarified through litigation within our judicial system. Also, training opportunities for school administrators to increase their knowledge of the law concerning students with disabilities may increase as new regulations are developed. It may be possible for school administrators to know and follow state policies and local procedures without direct knowledge of federal law. If so, the rights of students with disabilities may still be protected, to some extent, by a school administrator without a substantial knowledge of special education law. Summary and Overview of The Remaining Chapters Principals supervise the education of students with disabilities within their schools. Special education law is highly procedural.
Principals need to know the law governing the education of students with disabilities in order to fulfill their responsibilities. Administrators need to be able to rely on their own knowledge or the immediate access to a centralized system of special education upon which they can rely. The extent to which school administrators need to be knowledgeable of the laws which govern the education of students with disabilities is the extent to which that knowledge is necessary to ensure the protection of rights and equal access. Although principals are responsible for special education in their schools, there are no requirements for principals to complete a special education law course as part of their certifications or renewals. In this study, school administrators’ knowledge of special education law was studied to determine whether factors which influence their knowledge could be identified. In Chapter 2, the review of
... the disabled students of America? According to the Individuals with Disabilities Education Act, a child with a disability is a child with mental ... to develop physical symptoms or fears associated with personal or school problems. (NICHCY) 6) Orthopedic impairments - includes impairments ... that all children might be able to receive a free, appropriate public education. We have had the law for a ...
8 literature focuses on the history of laws related to educating students with disabilities and research which had addressed principal knowledge of special education law. Chapter 3 includes the research question investigated and it addresses the survey instrument in terms of selection and construction. The sample selection process is explained and the population studied is identified. The administration of the survey is discussed, including how it was administered, how returns were monitored and the steps for follow-up. An explanation of the statistical analysis used is also found in this chapter. Chapter 4 summarizes the findings of the study. Implications of the study and future avenues of research are discussed in chapter 5.
9 CHAPTER 2
Review of Related Research
The history of special education began with the late 19th century practice of segregating students with disabilities into special classes and separating them from the regular educational system (Rothstein, 1995).
Educational opportunities for students with disabilities were significantly different from those available to students without disabilities. These early special classes focused on self-help skills and were segregated from regular education classes for the comfort of teachers and children without disabilities. Consequently, what children with disabilities were expected to learn was significantly different from what regular students were expected to learn. Congress has recently expressed the growing concern for the low expectations for students with disabilities (Individuals With Disabilities Education Act Amendments of 1997, 20 U.S.C. 1400).
Legislation in the 20th century has shifted the focus of education for students with disabilities from providing limited opportunities to a focus of providing opportunities for education with non-disabled peers in the general curriculum. With the passage of P. L. 94-142 in 1975 and the emphasis on the leadership role of the school administrator, there has been an interest in looking at the principal’s role in special education (Clark, Lotto & McCarthy, 1980; Burrello, Schrup, & Barnett, 1992).
The school administrator is faced with the responsibilities of daily operation of special education in the school building, including planning with parents. The school administrator needs to be knowledgeable of special education law to protect the rights of students, to safeguard resources that might be diverted from instruction to litigation, and to build community confidence in his ability to ensure appropriate educational programs for all children who attend the school. This section includes a review of legislation and case law which has shaped public education for students with disabilities, the administration of
10 special education in our schools, and school administrators’ knowledge of special education. Students With Disabilities and the Law The Constitutional Foundation The education of students with disabilities in our public schools is based upon a history of federal law and subsequent judicial decisions. This history rests on the Constitution of The United States. Although the Constitution does not define a federal responsibility for public education, states have made provisions for education within their individual state constitutions. The Tenth Amendment to the Constitution states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Fifth Amendment provides for equal protection and due process. Specifically, the Fifth Amendment states that “no person shall be…deprived of life, liberty, or property, without due process of law.” (Constitution of the United States, Amendment Five) As the states, then, have made provisions for systems of public schools, the Fourteenth Amendment also applies. The Fourteenth Amendment provides for equal protection of law and for due process prior to depriving an individual of their life liberty or property.
Specifically, the Fourteenth Amendment states: no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. (Constitution of The United States, Amendment Fourteen, Section 1) The federal constitution does not include a right to an education. However, when state constitutions provide for a system of public education, they must provide equal educational opportunities and cannot deny these opportunities without due process of law. Education is viewed as a property right as an individual may not be successful in life if he does not
11 receive an education. These Amendments provided a basis for the development of laws governing the education of students with disabilities. The Judicial Foundation Three major court cases provided the momentum needed to develop federal laws to protect the rights of students with disabilities. These three cases, Brown v. Board of Education, Mills v. Board of Education, and PARC v. Pennsylvania, are addressed below as they occurred in time. In 1954, the Supreme Court determined that “separate educational facilities are inherently unequal” (Brown v. Board of Education).
Prior to this decision, various states had provided funding for schools for the deaf, blind, mentally ill, mentally retarded and physically handicapped. Students who did not attend these separate facilities or state schools found educational opportunities in churches, civic buildings, or segregated spaces in public schools. Most states had passed statutes requiring services for disabled children but there were widespread deficiencies in administration and funding and services varied greatly from state to state (Rothstein, 1995).
The Brown decision addressed the issue of educational access for all children and laid the groundwork for later questions of law regarding children with disabilities. In Brown v. Board of Education (1954), black children in Topeka, Kansas filed suit to attend white schools. Kansas law permitted separate schools for white and black students. Legal representatives for the black students argued that separate schools were not equal and, therefore, their clients were not receiving the equal treatment to which they were entitled under the Fourteenth Amendment to the United States Constitution. The Supreme Court concluded that “separate but equal” has no place in public education. Racial barriers to equal access to educational opportunities were substantially removed by the Court in this decision. The concept of separate but equal was not upheld. Parents and advocates of children with disabilities, who had their own history of exclusion and segregation, were encouraged by this landmark case. A second case which had a major impact on laws governing the education of children with disabilities was PARC v. Pennsylvania. In PARC v. Pennsylvania (1971),
12 the Pennsylvania Association for Retarded Children filed suit in federal district court and challenged Pennsylvania statutes which excluded retarded individuals from public schools. In the consent decree, the court stipulated that retarded children be educated in regular classrooms whenever possible and that appropriate notice and opportunity for a hearing be provided before changing any mentally retarded child’s educational program. These two provisions were later to become major points of procedure in legislation at the federal level for students with disabilities. The consent agreement further provided for the development of a plan to ensure a free, appropriate public education in the least restrictive environment for all mentally retarded children in Pennsylvania. The terms “least restrictive environment” and “free, appropriate public education” which appeared in the consent decree were to appear in subsequent federal legislation. In a third major decision, Mills v. Board of Education (1973), the plaintiffs sought relief from practices which labeled and excluded them from public schools. The federal district court ruled that disabled children have a right to a free, appropriate education regardless of the severity of their disability and regardless of the cost.
The court found that a district’s lack of funds could not justify limitations on the rights of children to an education. In rendering the decision, the court considered the Fifth Amendment as it applied to students with disabilities and clearly indicated numerous rights including “prior due process hearing before removal from school, evaluation of educational needs, parental notification, and periodic review of status and progress.” Both of the cases, PARC and Mills, recognized due process rights of children with disabilities under the Fourteenth Amendment and established specific steps to be followed to ensure the protection of these rights in the future. Formative Legislation In 1965, Congress passed P. L. 89-10, The Elementary and Secondary Education Act, to provide resources for economically underprivileged children. This act was to provide for equal opportunities in public education. Later that year, the Elementary and
13 Secondary Education Act was amended (P. L. 89-313) and authorized federal funding to established a grant program for elementary and secondary students with disabilities in state institutions and schools. This Act was to go through a number of amendments which resulted in a progression of supports for educating students with disabilities in public schools. In 1966, The Elementary and Secondary Education Act was again amended (P. L. 89-750).
The 1966 Amendments provided for grants to local school districts for the education of children and youth with disabilities. Although there were no procedures for states to follow in spending the funds, they were intended to stimulate the use of resources and develop human resources to teach handicapped children. The grant program was established to assist states in the initiation, expansion, and improvement of programs to educate handicapped children. It also provided for the establishment of The Bureau of Education for The Handicapped and The National Advisory Council. Two years later, the Elementary and Secondary Education Act was again amended. Public Law 90-247 provided funding for programs to improve special education services. With the passage of The Elementary and Secondary Education Act Amendments of 1970 (P. L. 91-230), a basic grant program for school districts or local education agencies was established. These amendments included The Education of The Handicapped Act (Title VI).
Once again, there were no procedural guidelines for spending the grant funds. In 1973, the Rehabilitation Act was passed by Congress. The Rehabilitation Act refers to a person with a disability as someone who “has a physical or mental impairment which substantially limits one or more major life activity [which includes learning], has a record of such an impairment, or is regarded as having such an impairment” [29 U.S.C.§ 706(1)(B)]. This statute prohibits discrimination on the basis of one’s disability. Under section 504 of this Act, an individual with a disability cannot be excluded from educational opportunities solely on the basis of the disability. Section 504 states that if an individual is otherwise qualified, then he shall not
14 solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance (29 U.S.C.§ 794).
Section 504 protects all individuals with disabilities from discrimination in any program or activity which receives federal funds. Following the two major court decisions providing educational access for handicapped students and convinced that states were not moving fast enough to provide these services, Congress passed P. L. 93-380, The Education Amendments of 1974. These amendments created two laws, one for appropriate public education for all children with disabilities and the Family Education and Privacy Act which entitled students over 18 and their parents the right to examine personal school records. Funding for education for handicapped children was increased and the states were required to set the goal of providing a public school education for all children with handicaps. Entitlement for Students with Disabilities Although there had been previous steps toward educating children with disabilities, a national concerted effort began with federal legislation which mandated the right to a free, appropriate public education for all children with disabilities. In creating P.L. 94-142, Congress moved the education of students with disabilities from the level of incentive grants to federal mandates. In 1975, The Education for All Handicapped Children Act (P. L. 94-142) was passed by Congress. This law, also known as The Act, provided for special education and related services in the least restrictive environment for each child with a disability. Every child with a disability was to have an individualized education plan which was to be developed and reviewed, at least annually. It provided for children with disabilities to be educated in the least restrictive environment. It also emphasized due process procedures and parental involvement. Parental consent became necessary before a child could be evaluated to determine eligibility for special education and the evaluation was to be non-discriminatory. Parents were to be included on the IEP team. Each placement
15 and services were to be determined on an individual basis, depending on the learning needs of each child. States were required to follow specific guidelines in order to receive federal funds. Congress established that a free appropriate education for students with disabilities was not a privilege but a right. This law established the commitment to educate the students in our country who have disabilities. It has been amended several times since it was established, but P. L. 94-142 clearly created a federal commitment to the rights of all students with disabilities. Significant Judicial Decisions There were a number of significant judicial decisions which helped to shape the current law which governs the education of students with disabilities. These cases were grouped for discussion by the legal principals of procedural safeguards, appropriate evaluations, free appropriate public education, parent and student participation, and least restrictive environment. Procedural safeguards. In 1978, Stuart v. Nappi was decided. The decision in this case further clarified the concept of a change in placement when expulsion is considered. Kathy Stuart (fictitious name), a student with a learning disability and limited intelligence, who had established a history of academic deficiencies and behavior problems, was expelled following several school disturbances.
Long before this decision, a school team for planning and placement met and decided that Kathy would be placed in a special education program for learning disabilities services on a trial basis and the team also recommended a psychological evaluation. The psychological evaluation did not take place. The following fall, as a result of continuing behavior and emotional concerns, the team again recommended a psychological evaluation. It was several months later that the evaluation was conducted. Four months after that, the appropriate status of her placement came into question when Kathy barely attended class. Her teacher requested a team meeting to address her primary disability and placement. The meeting was not held and by the next fall, Kathy stopped attending class and was involved in several incidents. When
16 her parent came to conferences following the incidents, Kathy’s behavior would seem to improve. Several months later when the team meet to review Kathy’s program, it was determined that it would not change at that time. But the team did recommend a change from part time to daily services and vocational training for the next year. These recommendations were not implemented the following year and a school staff member requested another team review for Kathy. The review did not take place before Kathy was involved in school-wide incidents, given a 10 day suspension and scheduled for an expulsion hearing. At the hearing, it was decided that Kathy should be expelled for the remainder of the school year. A temporary restraining order was obtained. She later obtained a preliminary injunction which enjoined the high school from holding a hearing to expel her. The district judge concluded that Kathy had not been provided with an appropriate public education. The record demonstrated that Kathy’s school had failed to provide her with the special education program provided by the review team and then failed to respond when Kathy did not participate. The school had established a record of failure to act.
The district court judge concluded that the failure of the school to provide an appropriate program may have contributed to Kathy’s inappropriate behavior. It was decided that the Education of the Handicapped Act did not allow a change in placement without formal review by the Committee on Special Education. This case established that the expulsion of a student with a disability constitutes a change of placement which is protected by the procedural safeguards of the Act. In 1981, discipline and students with disabilities was further clarified in the decision of S-1 v. Turlington. In this case, nine mentally retarded high school students were expelled for alleged misconduct. They sought an injunction under §504 of the Rehabilitation Act and the Education for All Handicapped Children Act. The court found that the expelled students were denied their right to a free appropriate public education. The trial court determined that, under the provisions of the EAHCA, no handicapped student could be expelled if their misconduct was related to their handicap. The
17 superintendent of the school district had determined that one of the students, S-1, had exhibited misbehavior that was not related to his handicap. The court, agreeing with the reasoning in Stuart v. Nappi, found that expulsion constitutes a change in placement and must be addressed according to the provisions of the EAHCA. Therefore, the determination of the relationship between the student’s misconduct and the handicap could only be made by a trained and specialized group. The U.S. Court of Appeals, fifth circuit, upheld the lower court’s decision that a knowledgeable group must determine whether there is a relationship between the student’s misconduct and the handicapping condition prior to expulsion. The court further agreed that an expulsion is a change in placement which invokes the protections of EAHCA and §504. Finally, the court of appeals found that expulsion is a proper disciplinary measure under EAHCA and §504, however a cessation of educational services is not. Discipline, procedural safeguards and students with disabilities were the focus of a United States Supreme Court case decided in January of 1988. Justice Brennan delivered the opinion in Honig v. Doe in which emotionally disturbed students first sought injunctive relief under EAHCA when they were indefinitely suspended pending completion of expulsion procedures.
The Federal District Court entered summary judgment and issued a permanent injunction after finding that the students’ behavior was related to their disabilities. The Court of Appeals affirmed but with one modification. The Court of Appeals decided that the case was moot as the respondent, Doe, was 24 years old and beyond the age limits of EAHCA. However, the case was not moot with respect to the other respondent, Smith, who was 20 years old and within the age limits of the protections of EAHCA. The U.S. Supreme Court decided that the EAHCA provision of “stay put” prohibited authorities from unilaterally excluding students with disabilities from classrooms for conduct which was related to their disabilities. Referring to Mills v. Board of Education, the Court noted that Congress had created the “stay put” provision to ensure that students would no longer be excluded from school when their misconduct was related to
18 their disabilities. The Honig decision prevents school officials from removing students with disabilities from their placements for more than 10 days without the agreement of the parent or the permission of the court. The Court further concluded that Congress had permitted school authorities to use the 10 day suspension to allow disruptive students to cool down and IEP committees to meet and considered changes in placement. In addition, there is a provision for seeking the assistance of the courts in cases where students are considered to be a danger to themselves or others. If the school district considers the child to be dangerous, and the parents and the school district cannot agree on an alternative placement, the school district can go to federal court to request a change. The court had determined in S-1 v. Turlington that students could be expelled for behavior that was not related to their disabilities, but educational services must continue. Honig v. Doe established that students could not be excluded for an indeterminate amount of time for behavior related to their disabilities. Appropriate evaluations. In 1979, a United States district court in California rendered a decision which was to have a significant impact on standardized intelligence testing.
In Larry P. v. Riles, black students brought action against the state of California department of public instruction challenging the use of intelligence tests used for placing students in classes for the mentally retarded. One fact was clear, a disproportionate number of black children had been placed in classes for the mentally retarded. The appropriateness of intelligence tests for determining dead end placements for students was not as clear. During this trial, recognized experts disagreed sharply on the use of intelligence testing for placement in mentally retarded classes. The decision included an injunction which banned the use of standardized individual intelligence quotient tests for evaluating black children for placement in classes for the educable mentally retarded. Prior court approval for the use of any of these tests could be obtained if the defendants could produce statistical evidence that the test would not discriminate on the basis of race or culture, would not be used in a discriminatory manner, and had been validated for use in placing students in classes for the
19 mentally retarded. Further, the court required that the state superintendent for instruction monitor the placement of students and eliminate the disproportionate numbers of AfricanAmericans in classes for the mentally retarded by directing local school districts to develop plans for correcting the imbalance. In addition, each African-American student already placed in these classes was to be reevaluated using assessments that did not discriminate. In addition to other violations, the district court held that discriminatory intelligence testing to place students violated the Education for All Handicapped Children Act. In a related case, Parents in Action on Special Education (PASE) v. Hannon (1980), the court examined the issues in a different manner. When two black children who were placed in classes for the mentally retarded after earning low scores on intelligence tests, they brought suit on behalf of all students who were classified and placed in a similar way. They argued that the standardized intelligence tests which were administered discriminated against black students and violated the Education of the Handicapped Act, the Rehabilitation Act of 1973, and the Civil Rights Act of 1964.
The two students had been placed in classes for the mentally retarded and then, upon re-evaluation, were found to be learning disabled when they scored within the average range of intelligence. They sought a permanent injunction against the use of intelligence tests when evaluating black students for placement in classes for the mentally retarded. The district court heard testimony concerning the philosophy of genetic inferiority held by the psychologists who developed the early intelligence tests as well as the idea more recently held by school psychologists that intelligence is not fixed and is subject to change. The court decided to turned its attention to the examination of individual test items. Upon reviewing each item of the three tests under scrutiny, the court determined that, of all of the items on the three tests, only nine were considered to be culturally biased or significantly suspect as to be inappropriate. With only nine items identified as biased or potentially biased out of the three tests, the court reasoned that the tests were not unfair. The court also reviewed the assessment procedures followed in finding a student mentally retarded and concluded that the
20 intelligence tests were only one factor in making the determination. The court found that the tests had been used in conjunction with other criteria which was mandated by the Education of the Handicapped Act. In referring to the Larry P. v. Riles case, the court noted that several of the witnesses testified in both cases. Yet the court in this case found the examination of each test item for bias to be most persuasive. In comparing the two cases on intelligence testing, Turnbull and Turnbull (1998) concluded that “PASE v. Hammon (1980), validates use of the tests when evaluation is accomplished by additional means and seems to mute the tune that Larry P. sang (p. 119).” Free appropriate public education. In the case of the Board of Education of The Hendrick Hudson Central School District, Westchester County, et al. v. Rowley (1982), the Supreme Court interpreted the meaning of free appropriate public education (FAPE).
Amy Rowley was a deaf student in a New York school district who was placed in a regular kindergarten. Although Amy had minimal residual hearing, she was considered to be an excellent lipreader. Prior to her attending, several administrators completed a signlanguage course and a special teletype machine was placed in the principal’s office to allow communication between the school and Amy’s deaf parents. When Amy’s IEP was developed, the plan contained provisions for a hearing aid to be used in the classroom and extra help from tutors. In addition, the parents demanded that a sign language interpreter be provided in Amy’s classroom. An interpreter had been assigned to Amy’s classroom during the preceding school year and had concluded that his services were not needed. The Rowleys believed that an interpreter was necessary for Amy to receive FAPE and requested a hearing when their request for an interpreter was denied. The hearing officer agreed that the interpreter was not needed because Amy was progressing academically and socially without the interpreter. When the Rowleys appealed to the New York Commissioner of Education, they were unsuccessful. They then bought action in the U.S. District Court. During the proceedings, it was noted that Amy was achieving better than the average child in her class and that she was meeting promotion standards. However, it was determined
21 that Amy was not progressing as she might if she did not have a handicap. Therefore, the court concluded that the standard for FAPE had not been met. The Court of Appeals affirmed. The Supreme Court of the United States provided the final interpretation of FAPE in this case. In delivering the opinion of The Court, Judge Rehnquist abandoned the standard of FAPE used by the lower court and established a standard which was the standard of an individualized plan for instruction with supports which allow a student to receive educational benefit. The Court concluded that grades and promotion standards were important factors in determining benefit. Based upon the standard of FAPE used by the Court, the decision of the Court of Appeals was reversed. This case provided a standard for educational benefit in determining FAPE. The provision of related services became the focus of a 1984 decision in the case of Irving Independent School District v. Tatro. This case resulted in another Supreme Court decision regarding FAPE. The focus of this case was a student with spina bifida who had orthopedic and speech problems. In addition, the student had a bladder condition which required periodic catheterizations throughout the day. When the school district offered an individual education plan which did not include catheterization, the parents pursued administrative remedies and then turned to the courts. The case was eventually heard by the Supreme Court which determined that the Education of the Handicapped Act clearly intended that schools provide specialized personnel to assist handicapped children. The catheterization required did not require medical services but the services of a qualified individual who could be easily trained to deliver them at school. Therefore, the catheterization was considered to be a related service under the Education of the Handicapped Act and not a medical service which might be excluded by the Act. In Timothy W. v. Rochester, New Hampshire, School District (1989), a profoundly physically and mentally handicapped child was denied special education. The school district determined that Timothy did not qualify to receive special education because the severity of his handicaps would prevent him from receiving benefit. A hearing officer
22 supported Timothy’s claim to special education on the basis that EAHCA mandated services for all children with handicaps. The school district appealed to the federal district court continuing to reason that Timothy could not benefit from special education. The federal court concluded that a determination of a child’s ability to benefit was a prerequisite for receiving special education. Timothy’s parent appealed this decision to the U.S. Court of Appeals, First Circuit. The appellate court determined that the congressional intent for EAHCA was to provide education to all students with handicaps and especially those with the most severe handicaps which had been traditionally excluded from school. Therefore, the court decided that the school district had erred in denying services to Timothy. It was also noted that education for some students would have to be broadly interpreted to include life skills. By finding that all handicapped children are entitled to a free appropriate public education, that education can be broadly defined and that establishing ability to benefit is not a requirement, Timothy R. v. Rochester helped to further define free appropriate public education. Parent/student participation. The United States Supreme Court decided the case of Smith v. Robinson in 1984. This case focused on the awarding of attorney fees. Although a school district committee had agreed to place a student with cerebral palsy and emotional and physical handicaps in a special school program, it later informed the parents that it would no longer pay for the educational placement. As a result of this and subsequent actions taken, the case made its way to the Supreme Court. The Court decided that §504 does not apply when relief to remedy the denial of educational services is available under the Education of the Handicapped Act. The Court found that parents who brought action under the EAHCA could not seek attorney fees under §504. The decision in this case was the basis for developing the 1986 amendment entitled the Handicapped Children’s Protection Act. Least restrictive environment. Daniel R.R. v. State Board of Education (1989) addressed the concept of least restrictive environment. The EAHCA had established
23 procedures for providing a free appropriate public education in the least restrictive environment for all students with disabilities. Daniel, a mentally retarded and speech impaired six year old boy diagnosed with Downs Syndrome, was enrolled in a special education program when his parents requested placement with non-disabled peers for the next school year. After consideration of the options, Daniel was placed for 1/2 day in the special education program and 1/2 day in a regular education class. When Daniel required constant attention from the regular teacher or her aide and failed to master any of the skills being taught, his placement was changed. Daniel was to continue to attend the 1/2 day special education class, but the regular 1/2 day class was dropped. However, opportunities to be with non-disabled peers were provided at lunch time and recess. Daniel’s parent turned to a hearing officer who agreed with the placement committee decision. Daniel’s parents then turned to the federal district court which concluded that Daniel was unable to receive benefit from the regular education placement and affirmed the hearing officer’s decision. Appeal was made to the U.S. Court of Appeals, Fifth Circuit. The Court of Appeals first turned attention to procedural violations of EAHCA and concluded that Daniel’s parent had been provided with proper notice of a proposed change in placement, that appropriate steps to evaluate before a change in placement had been blocked by the parents, that the requirement of provision of supplementary aids and services had been met, and that a continuum of placement options were not only available but had been tried in an effort to determine appropriate placement. It was decided that the removal of Daniel from the regular class placement did not require disciplinary procedures of EAHCA. The Court then turned its attention to substantive violations. The Court concluded that EAHCA mandates that a wide spectrum of learning abilities be tolerated and that students not be excluded on the basis of their inability to keep pace with their average peers. In addition, the Act implies that access to the regular class has benefit and that the regular education environment confers benefit beyond academics, such as appropriate models for behavior and language. As Daniel was not able to demonstrate mastery of lessons taught or
24 participate in class activities, the Court found that the benefit of peer interaction in regular education did not outweigh the benefits of the special education placement. The Court of Appeals affirmed the district court. An important factor in the determination of this case was the willingness of the school committee to consider the parents request and place Daniel in the regular classroom. This action provided important information for considering and deciding the case. Least restrictive environment was addressed again in Board of Education, Sacramento City Unified School District v. Rachel Holland (1992).
The school district placed Rachel Holland, a moderately mentally retarded student, in a special class with various opportunities to be with her non-disabled peers (mainstreaming) during the school day. Her parents were not satisfied with the sixty minutes or less that Rachel spent in a regular class and repeatedly asked the district to extend this time. This placement in a special class with minimal mainstreaming was in place from 1985 until 1989 when Rachel’s parents requested a full time placement in a regular class for the next school year. When the district denied their request, the district and the parents participated in mediation. As a result of mediation, the parties were able to reach agreement on an individual education plan. The district then proposed a placement where Rachel would have to move back and forth between the regular and special classes several times throughout the day. Rachel’s parents rejected this placement and removed Rachel from the public schools. They placed Rachel in a regular kindergarten class in a private school and appealed to a state hearing officer. The parents argued that the regular classroom was the least restrictive environment for Rachel. The district argued that, with an intelligence quotient of 44, Rachel was too severely retarded and required placement in a special class. The hearing officer concluded that the district had not made sufficient attempts to educate Rachel in the regular classroom. The kindergarten teacher from the private school was able to testify that Rachel, with the assistance of an aide, had in fact received benefit from her regular class placement. The hearing officer ordered the district to place Rachel in a regular classroom
25 with a part-time aide and part-time special education consultant. The district appealed to the federal district court. In making its determination, the court considered four factors which have been recognized as significant by the appellate courts. First, the court compared the educational benefits of educating Rachel in the regular classroom with the appropriate supplemental aids and services. The court found that the district had failed to prove that the benefits of a special education class were superior. Second, the court considered the nonacademic benefits to Rachel of interaction with peers without disabilities. The court recognized that the benefits of appropriate models for language and behavior and determined that the evidence of social growth as a result of Rachel’s regular class placement supported her placement in a regular class. The third factor considered by the court was the effect of Rachel’s presence on the teacher and other children. Rachel’s regular class teacher had testified that her presence did not interfere with her ability to teach the other children. The court found no evidence of Rachel’s disruptive behavior and concluded that she was not a distraction to the class. The fourth factor for the court’s consideration was the costs of providing appropriate support services. The court concluded that the difference in cost between placing Rachel in a special class and placing Rachel in a regular class with a part time aide was modest, if any. In conclusion, the court affirmed the hearing officer’s decision and found that the appropriate placement for Rachel was a regular education class with support services. While Daniel R.R v. State Board of Education had demonstrated that the school district’s position is strengthened by placing a student with a disability in regular education with supplemental aids and services before determining that a more restrictive placement is necessary, Rachel Holland’s case demonstrated that a district’s position is weakened by not attempting the less restrictive placement first. In the case of Oberti v. Board of Education of the Borough of Clementon School District (1993) the court again addressed the issue of educating students with disabilities in regular classrooms. After seeking and being denied placement in regular education for their son Rafael, a severely mentally and language impaired child, the Obertis appealed to a state
26 hearing officer. The school district had recommended a segregated, self-contained special education program outside of the school district for his kindergarten year. Although the parents wanted Rafael to spend time in the regular classroom, they were willing to visit the sites offered by the school district. The school district finally agreed to place Rafael for half of the day in a program with children not ready for kindergarten and half of the day in a special class for preschool handicapped children. The plan required Rafael to attend school in two different districts. Within a short period of time, the parents requested that an aide be assigned to assist him in the developmental kindergarten class and several months later, an aide was provided. Rafael made progress in language, social, and academic skills in both classes but behaved inappropriately at times in the kindergarten class. The following year, the district proposed placement in a self-contained special education class outside of Rafael’s school district. His parents requested a due process hearing when the district denied their request for a regular placement in their school district. When the school district was supported by the hearing officer, the Obertis appealed. The federal district court granted judgment in favor of the Obertis and this decision was affirmed by the Court of Appeals, Third Circuit. The court found that the district had created a pattern of placing students with moderate to severe mental retardation to self-contained classes without consideration of the child’s individual needs and, therefore, was in violation of IDEA. Further, the district was in violation of section 504 of the Rehabilitation Act when it failed to make reasonable accommodations to support Rafael in the developmental class and to provide appropriate supplementary aids and services when Rafael began to have behavior problems. The court reasoned that before a school district considers removing students with disabilities from regular education, it must first consider whether supplementary aids and services would allow the students to make satisfactory progress toward their goals in the regular class setting. This reasoning would later appear as a provision in the 1997 Amendments to IDEA.
27 Significant Re-authorizations In 1978, The Education for All Handicapped Children’s Act (EAHCA) was amended to encourage research to improve educational programs for children with disabilities. The Education for All Handicapped Children’s Act was re-authorized again in 1983 as P. L. 98-199. These amendments emphasized school to work transition, early intervention demonstration projects, and parent training and information centers. A concerted effort was underway to ensure that parents of disabled students had opportunities to learn about the rights of disabled students. In 1986, the Act was again amended (P. L. 99-457) to provide for educational services for preschool children. Part H was enacted to provide funding to states to serve children with disabilities from birth through age 2. The Handicapped Children’s Protection Act was also passed as P. L. 99-372. Following the Smith v. Robinson decision, members of Congress became concerned that the cost of litigation might prevent parents from seeking counsel to challenge school districts (Alexander and Alexander, 1992).
Congress overturned the ruling of the Court in Robinson v. Smith and provided for financial relief to parents when they seek relief from the judicial system. This law provided for the awarding of attorney fees through the Civil Rights Act and §504 once claims under EAHCA had been exhausted. The law increases the burden on the local school districts by requiring that penalties be paid from local rather than federal or state funds. It was the Congressional intent to allow attorney fees, which are reasonable, to be awarded to parents who prevail in a hearing or court action. This provision was to allow the opportunity for parents to pursue avenues of review which might appear closed without available financial resources. The Act was amended again in 1990 (P. L. 101-476).
The law was renamed The Individuals with Disabilities Education Act. Traumatic brain injury and autism were added to the categories for eligibility. Planning school to work transition services became mandatory for students 16 years of age and assistive technology was defined. With the
28 requirement for transition services, the student became a meaningful member of the IEP team. If the student was unable to attend the IEP meeting, the school was now required to take measures to ensure that the student’s preferences and interests were part of the planning. Also in 1990, Congress passed the Americans With Disabilities Act (ADA).
This law is applicable to education in public and private schools. It extends protection beyond Section 504 of the Rehabilitation Act to organizations which are not receiving federal funds. ADA protects all individuals with disabilities from discrimination and it requires public and private schools to provide reasonable accommodations. Under ADA, even individuals with contagious diseases are protected. An individual with a disease cannot be discriminated against as long as he does not threaten the health of others in a direct way. The association feature, i.e., if one has been associated with someone who has a disease, is also addressed by ADA. The individual who has been associated with someone who has a disease is protected from discrimination. Therefore, the brother of an individual with Acquired Immune Deficiency Syndrome cannot be denied equal access or be discriminated against (Rothstein, 1995).
The Individuals with Disabilities Education Act Amendments of 1992 (P. L. 102119) focused on programs for educating infants and toddlers with disabilities. These programs are addressed through Part H of this Act. The 1997 Amendments to IDEA In 1997, Congress significantly modified the Individuals With Disabilities Act. P. L. 105-17, The Individuals with Disabilities Education Act Amendments of 1997, was signed into law by President Clinton on June 4th of that year. These Amendments emphasize stronger academic expectations, access to the general curriculum, increased parental and student involvement and accountability for students with disabilities. Public Law 105-17 contains parts A through D. Part A contains general provisions and part B contains assistance to the states for education of all children with disabilities. Part C re-
29 authorizes part H which relates to infants and toddlers with disabilities. Part D contains sections which address national activities to improve education of children with disabilities. The 1997 Amendments have six major principles with regard to special education services (National Information Center for Children and Youth with Disabilities, 1998).
These principles are free appropriate public education, appropriate evaluation, individual education programs, least restrictive environment, parent and student participation in decision making, and procedural safeguards. Table 1 demonstrates the major law cases for the six principles. Free appropriate public education. Free appropriate public education (FAPE) is a basic mandate for educating students with disabilities. It evolved from case law and became a basic part of the legislation The Education for All Handicapped Children’s Act of 1975 (U.S.C.A., §1401(18).
It is re-emphasized and strengthened in the 1997 Amendments. Free appropriate public education refers to an education which is paid for with public funds without cost to the students or parents, which is individualized for the unique needs of each child with a disability and which meets the standards of the state education agency. FAPE is defined in federal law. The term ‘free appropriate public education’ means special education and related services that-(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State education agency; (C) include an appropriate preschool, elementary, or secondary school education in the state involved; and (D) are provided in conformity with the individualized education program required under Section 614 (d) [Section 602(8)]. Congress wanted to enhance the ability of the individual states to ensure FAPE by focusing attention on the involvement in the general curriculum of students with disabilities
30 and through the development of human resources. The provision of the Amendments of 1997 which emphasizes the general curriculum has an influence on the term appropriate in FAPE. The individual education program (IEP) for each child with a disability must include a statement of …how the child’s disability affects the child’s involvement and progress in the general curriculum. [Section 614(d)(1)(A)(i)] The response for each child is unique to that individual, i.e., the effects of one child’s disability may be quite different from the effects of another child’s disability. Therefore, one child’s ability to progress in the general curriculum may vary from that of another child. There is a unique nature to this provision. What is true for all children with disabilities, is the presumption that they will participate in the general curriculum and that the IEP team will determine when limitations on that involvement are appropriate. The determination to limit a child’s involvement in the general curriculum must be based upon careful consideration of the evaluation information, the student’s goals and objectives, and individual needs. (National Information Center for Children and Youth with Disabilities, 1998).
What is appropriate varies from student to student and must be addressed on an individual basis. Students with disabilities also have the right to participate in state assessment programs or alternative assessment programs developed by the state. The 1997 Amendments refer to the obligations of IEP committees. According to the Amendments, the IEP must include, if the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of such an assessment), a statement of– why that assessment is not appropriate for the child; and how the child will be assessed [Section 614(d)(A)(i)(v)(II)].
31 Table 1 Case Law and Six Principles of The 1997 Amendments: Free Appropriate Public Education (FAPE), Appropriate Evaluations (AE), Individual Education Programs (IEPs), Least Restrictive Environment (LRE), Parent/Student Participation (P/S), and Procedural Safeguards (PS)________________________________________________ ____________________________________________________________
__________ _____________Six Principals_______________ Case Law FAPE AE IEPs LRE P/S PS ____________________________________________________________
__________ PARC v. Pennsylvania Mills v. Bd. of Education Stuart v. Nappi Larry P. v. Riles PASE v. Hannon S-1 v. Turlington Henrick Hudson v. Rowley Irving School District v. Tatro Smith v. Robinson Honig v. Doe Timothy W. v. Rochester Daniel R. R. v. State Bd. Of Educ. Sacramento v. Holland Oberti v. Clementon x x x x x x x x x x x x x x x x x x x x x x x x x
__________ Note: The “x” indicates the area influenced by each case.
The IEP team must proceed with the presumption of the child’s involvement in the assessments which are in place for nondisabled children and clearly document when that
32 involvement is not appropriate for an individual child. The states must also decide what performance goals and indicators are to be set for students with disabilities [Section 612(a)(16)]. As students participate in statewide assessments and as states set performance goals for students with disabilities, FAPE will be further defined. The Amendments also address FAPE under State Eligibility which refers to state responsibilities for fiscal assistance. A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school. [Section 612(a)(1)(A)] When a student with a disability is removed from school, the responsibility for the implementation of his IEP in the least restrictive environment remains with the state and local education agencies. All students with disabilities who are suspended or expelled must be provided FAPE. The student’s IEP must be implemented in the least restrictive environment when the student is removed from school. FAPE is also affected by the provision for a comprehensive system for personnel development (CSPD).
The CSPD is to be developed by the State to ensure that there will be appropriately trained personnel, in sufficient numbers, to provide FAPE to children with disabilities [Section 612(a)(14)]. The 1997 Amendments to IDEA require each State to coordinate their CSPD with their state improvement plan [Section 612(a)(14)]. Each State is also required to develop procedures to ensure that local education agencies …make an ongoing good-faith effort to recruit and hire appropriately and adequately trained personnel to provide special education and related services to children with disabilities… [Section 612(a)(15)(C)] The new law allows appropriately trained and supervised paraprofessionals to provide special education and related services under certain conditions [Section 612(a)(15)(B)(iii)]. This provision may provide some relief to districts with shortages of trained professional
33 personnel. These same districts are also allowed to hire the most qualified teachers as long as they can complete the certification requirements in three years. The new law affects FAPE by strengthening personnel development and professional standards. It emphasizes the focus of services on the general curriculum and the regular classroom. It requires standards and goals for students with disabilities and these changes will shape what is appropriate for each child receiving special education. Appropriate evaluation. Appropriate evaluation has played a significant role in providing special education to students with disabilities. The requirements for the evaluations leading to the identification and placement of students with disabilities were specified throughout P. L. 94-142 (1975).
The 1997 Amendments to IDEA address evaluations and reevaluations in one section of the law. The changes in the law fall into two areas, individual evaluations and State and district assessments. When evaluating individual children, the law now provides for an increased level of parental participation. When determining whether a child is eligible as a child with a disability, the parents are now members of the team which makes the determination. This determination shall be made by a team of qualified professionals and the parent of the child [Section 614(b)(4)]. In addition to being members of the team which determines eligibility, the parents must receive a copy of the documentation of the determination of the eligibility and a copy of the evaluation report used in making the determination [Section 614(b)(4)(B)]. Parental involvement is also strengthened in the reevaluation process. Prior to conducting a reevaluation of a child with a disability, the school district “…shall obtain informed parental consent…” [Section 614(c)(3)]. This requirement allows the parents of a child with a disability to be provided with information concerning reevaluation before giving consent for the process to begin.
34 In both initial evaluations and reevaluations, the 1997 Amendments to IDEA allow for the review and consideration of the existing data. The reevaluation team is the IEP team and other qualified professionals. This team must now review the existing data which are available and then decide what additional data are needed to make their determinations [Section 614(c)(1)]. In conducting the assessments, the school district must use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child’s individualized education program [Section 614(b)(2)(A)]. The new law moves the process of assessment in a more meaningful direction, allowing teams to decide when additional assessments are not needed and, therefore, avoiding unnecessary costs. It also emphasizes the need for meaningful, functional data when making decisions. There are also changes in the law which affect State and district-wide assessments. The 1997 Amendments to IDEA establish a presumption that students with disabilities will participate in these assessments, with or without modifications [Section 614(d)(1)(A)(ivv)]. The expectation is that a child with a disability will participate in the assessments unless the IEP team determines that it is not appropriate, even with accommodations for the disability. Once a team makes this decision, they must document why the child’s participation is not appropriate and what alternative assessments will be used [Section 614(d)(A)(i)(v)]. Each State is responsible for developing procedures for those students with disabilities who do not participate in State and district-wide assessment programs. Each State must develop alternate assessments for these children and begin conducting these alternate assessments by July 1, 2000 [Section 612(a)(17)(A)]. In addition, each State must develop performance goals for students with disabilities and report to the Secretary of Education and the public on the progress of the children with disabilities in the State every two years [Section 612(a)(16)(C)]. It is clear that Congress intended for the
35 standards and accountability for the education of children with disabilities be in place along with those for their non-disabled peers. Individual education programs. Another principle found in the 1997 Amendments to IDEA is individualized education and related services which are provided for each child with a disability and are documented in the IEP. The IEP is developed, implemented, reviewed, and changed according to federal law. The 1997 Amendments contain provisions which became effective on July 1, 1998. The IEP team now includes at least one general education teacher who will, to the extent appropriate, participate in the IEP development including the determination of appropriate positive behavioral interventions and strategies, supplementary aids and services, program modifications and support for school personnel [Section 614(d)(3)(C)]. The IEP team must consider the child’s involvement in the general curriculum. The presumption is that the child will participate in the general curriculum. It is the responsibility of the IEP team to determine how the child’s disability affects the child’s involvement and progress in the general curriculum [Section 614(d)(1)(A)]. The IEP team must determine what supplementary aids and services are necessary for the child to participate in the general curriculum. This focus on the student’s involvement in the general curriculum can also be seen in the requirements for stating the extent to which a child may not participate with his peers in regular education and setting goals which are focused on assisting the child to progress in the general curriculum [Section 614(d)(1)(A)]. The new law also contains special factors which must be considered by the IEP team. The team must consider behavior which interferes with the child’s learning. The IEP team shall– in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including
36 positive behavioral interventions, strategies, and supports to address that behavior [Section 614(d)(3)(B)]. The team must also give consideration to the language needs of a child with limited English proficiency and the communication needs of the child to include opportunities for communication and instruction in the child’s language and communication mode. In addition, the team must consider any needs for “assistive technology devices and services” [Section 614(d)(3)(B)]. Transition planning must now be addressed by the IEP team for a student at age 14 and 16 and, at least one year before the child reaches the age of majority, the team must inform the child of his or her rights and document the same [Section 614(d)(1)(A)]. The parental involvement commitment is evidenced once again in the requirement for schools to notify parents of progress toward IEP goals at least as frequently as progress is reported for students who do not have disabilities [Section 614(d)(1)(A)]. There is also a provision for parental involvement in placement decision making [Section 614(f)]. Least restrictive environment. The principle of least restrictive environment is emphasized by several changes in the 1997 Amendments. The focus on educating children with disabilities with their non-disabled peers is emphasized clearly in the caution that a student be removed from the general curriculum and the regular classroom only when the nature and severity of the disability of a child is such that education in regular classes with supplemental aids and services cannot be achieved [Section 612(a)(5(A)]. Although the concept of least restrictive environment is a very unique one which can vary from one child with a disability to the next, the changes to this principle are general in nature. In every case, the student’s IEP team determines what is the least restrictive placement. The way that State funds are distributed must be without encouraging placements which violate the requirements of the least restrictive environment. If the State is not
37 currently in compliance with this requirement, then the State must take steps to comply [Section 612(a)(5)(B)]. Part B funds under IDEA can be expended for special education, related services, supplementary aids and services, within a regular education setting even if one or more children without disabilities benefit from the services [Section 613(a)(4)(A)]. Placement in the general education classroom is now the first option for an IEP team to consider. The presumption that students with disabilities will participate in the general curriculum and in State and district-wide testing further encourages IEP teams to provide services in the least restrictive environment [Section 614(d)(1)(A)]. The provision for each State to develop performance indicators and goals which correlate with those set for students without disabilities will also encourage placements in the least restrictive environment [Section 612(a)(16)]. Parent and student participation. The 1997 Amendments to IDEA confirm the commitment to parent and student involvement in decision making. Student involvement is assured with the requirement for IEP teams to consider transition services. The team must develop, beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s courses of study (such as participation in advanced-placement courses or a vocational education program) [Section 614(d)(1)(A)(vii)(I)]. If the child had not been included in IEP meetings in the past, it was clear that the IEP team was to include the child at age 14. The IEP team is also required to inform the child of the rights, if any that will transfer to the child when the child reaches the age of majority. The team must follow State law with regard to the age of majority and the student must be informed at least a year before the age of majority is reached. The team must include this information in a statement in the IEP [Section 614(d)(1)(A)(vii)(III)].
38 Parental involvement in the education of students with disabilities is substantiated by the changes in the 1997 Amendments to IDEA through several provisions. Parents of children with disabilities or individuals with disabilities must now make up the majority of members on the State Advisory Panel [Section 612(a)(21)(C)]. During evaluations and reevaluations, parents have the right to provide information and to review existing information [Section 614(b)(2)(A)] and (c)(1)(B)]. The school district must secure the parent’s consent in order for the child to be reevaluated [Section 614(c)(3)]. It is the responsibility of the local education agency or the State education agency to ensure that the child’s parents are members of the team which determines their child’s eligibility and placement [Section 614(f) and (c)(3)]. Parents must be afforded the opportunity to participate in all meetings that involve the identification, evaluation, educational placement, or provision of a free appropriate public education for their child [Section 615(b)(1)]. Parents have the right to receive regular reports on their child’s progress toward their IEP goals and they have the right to receive those reports at least as frequently as parents of children who do not have disabilities [Section 614(d)(1) and (4)]. In addition to these rights, parents of children with disabilities also have two responsibilities. Parents must notify the public agency if they intend to remove their child from a public school and place the child in a private school at public expense [Section 612(a)(10)(C)]. Parents must also notify the local education agency or the State education agency if they intend to file a due process complaint [Section 615(b)(7)]. The 1997 Amendments provide for participation and involvement of students with disabilities and their parents in the decisions regarding the process of special education. Procedural safeguards. Procedural safeguards have played an important role in protecting the rights of students with disabilities. State education agencies or local school districts must establish and maintain steps to guarantee procedural safeguards, with regard to the provision of a free appropriate education, for children with disabilities and their parents [Section 615(a)]. Public agencies are required to provide parents of children with
39 disabilities with a copy of the procedural safeguards at certain times. Notice of procedural safeguards must include a full explanation of the procedural safeguards. The notice must be written in the parent’s native language, unless it is clearly not feasible to do so, and written in an easily understandable manner [Section 615(d)(2)]. The notice of the procedural safeguards must inform the parents that they have certain rights relating to independent educational evaluation, written prior notice, parental consent, access to educational records, opportunity to present complaints, the child’s placement pending due process proceedings, procedures for students subject to placement in interim alternative educational settings, requirements for unilateral placement by parents of children in private schools at public expense, mediation, due process hearings, including disclosure requirements of evaluation results and recommendations, State-level appeals, civil actions, and attorney fees [Section 615(d)(2)(A)-(M)]. Parents are to receive a copy of procedural safeguards when their child is referred for an initial evaluation, when they receive notice of an IEP meeting, when the child is reevaluated, and when a complaint is filed regarding the identification, evaluation, educational placement of the child, or the provision of FAPE [Section 615(d)(1)(A)-(C)]. Prior written notice is required whenever the local school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child [Section 615(b)(3)]. The content of the notice must include a description of the action proposed or refused by the local education agency, an explanation of why the local education agency is taking the action, a description of other options considered and why they were rejected, a description of each evaluation procedure, test, or report used to propose or refuse the action, a description of other factors related to the decision, a statement that parents of a child with a disability have procedural safeguards available to them and how to obtain a copy of the safeguards, and sources for assisting them with understanding the procedural safeguards [Section 615(c)(1)-(7)].
40 Parents are now required to provide written notice to the educational agency when they intend to remove their child with a disability from the public school setting and place the child in a private school setting [Section 612(a)(10)(C)]. Parents must also provide notice to the educational agency if they intend to file a due process complaint. The notice is to include the name and address of the child, the school that the child is attending, a description of the nature of the problem and the facts relating to the problem, and a proposed resolution to the problem to the extent known and available to the parents [Section 615(b)(7)]. States must develop procedures for resolving disputes through the process of mediation [Section 615(e)(1)]. In developing these procedures, the State education agency must ensure that participation is voluntary on the part of both parties. Mediation cannot be used to deny or delay due process hearings or any other rights. The State agency is responsible for maintaining a list of trained and qualified mediators who are impartial and knowledgeable in laws and regulations relating to the provision of special education and related services. The State bears the cost of mediation and agreements reached must be in writing. Discussions in mediation are considered confidential and protected from being introduced into any subsequent due process or civil proceedings. Parties must sign a pledge to this effect prior to beginning mediation [Section 615(e)(2)]. Discipline requirements for students with disabilities reflect the standards that have emerged from case law and policies which protect children from being excluded from school for behavior that is related to their disabilities even as communities demand safe and secure schools. Under the 1997 Amendments, school personnel now have the authority to change the placement of a child with a disability, without parental consent, to an appropriate interim alternative setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and to an appropriate interim alternative educational setting for the
41 same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if [Section 615(k)(1)(A)] the student carries a weapon to school or to a school function or if the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function. The interim educational setting is determined by the IEP team [Section 615(k)(3)(A)]. The placement must allow the student to continue to participate in the general curriculum and include services to address the behavior exhibited so that it does not recur [Section 615(k)(3)]. When a student is placed in an interim alternative educational setting, the local educational agency is responsible for holding an IEP meeting either prior to the disciplinary action or within 10 days after the action is taken. The IEP team must develop a behavior intervention plan based upon a functional behavior assessment which addresses the behavior which resulted in the suspension. Or, if such a behavior plan already exists, the team must review the plan and, if necessary, modify it to address the behavior [Section 615(k)(1)(B)]. This is one exception to the provision that allows a child with a disability to remain in their current placement during proceedings whenever the school district and parent cannot agree on a change of placement [Section 615(j)]. This provision was part of P. L. 94-142 and was based on the court cases in the early 1970’s where children were unilaterally excluded from a free appropriate public education for behaviors resulting from their disabilities. The limits of the “stay put” provision have been weighed over time and clarified by case law. Stuart v. Nappi (1978) established that the removal of a student from school for more than 10 days was considered a change in placement and triggers procedural safeguards. S-1 v. Turlington (1981) established the need for a knowledgeable group to determine whether a student’s misbehavior is related to the student’s disability. In Honig v. Doe (1988), the Supreme Court referred to the Congressional intent under the Act to remove from schools the unilateral authority to remove students from school. The Court concluded that, in the case of a dangerous student, the schools have the authority to remove
42 the student for up to 10 days during which the IEP team can agree on change in placement or invoke the assistance of the courts to grant appropriate relief. The authority of hearing officers to place children in appropriate interim alternative settings is extended in the law under very specific circumstances. A hearing officer may order a change in a student’s placement to a more appropriate interim alternative setting for not more than 45 days if the hearing officer considers: the appropriateness of the child’s current placement; whether there is substantial evidence that maintaining the student in the current placement will be substantially likely to result in injury to the child or to others; whether the public agency has made reasonable effort using supplemental aids and services to minimize the risk of harm in the child’s current placement; and whether the alternative placement will allow the student to continue to participate in the general curriculum and include services and modifications designed to address the behavior which resulted in the suspension [Section 615(k)(2) and (3)]. The presumption of maintaining the child with a disability in the current placement can be outweighed in certain defined situations. When a child with a disability violates any rule or code of conduct which is set by the local education agency to apply to all children, if the disciplinary action considered involves a change of placement for more than 10 days, the agency must follow certain procedures. Not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child’s disability and the behavior subject to the disciplinary action [Section 615(k)(4)]. The IEP team and other qualified personnel will conduct the review and can only conclude that the behavior is not a manifestation if they consider all relevant information, including evaluations and diagnostic results, observations, the IEP and placement and then determine that the IEP and placement were appropriate and that the
43 special education services, supplemental aids and services, and the behavior intervention strategies were provided consistent with the IEP. They must also find that the child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and the child’s disability did not impair the ability of the child to control the behavior subject to disciplinary action [Section 615(k)(4)(C)]. If, after conducting the appropriate review, the IEP team determines that the behavior was not a manifestation of the child’s disability, then the student may be subject to the same disciplinary procedures that are applied to children without disabilities, with the exception that the child with a disability must be provided educational services [Section 615(k)(5)(A)]. The individual in the school district who makes the final decision concerning whether to discipline the child with a disability, whose behavior is not related to the disability, must be provided with the special education and discipline records of the child [Section 615(k)(5)(B)]. A parent can request a due process hearing if the parent disagrees with the manifestation decision and a hearing must be provided expeditiously [Section 615 (k)(6)]. During the due process proceedings, the child remains in the current placement unless the local education agency is operating under the drug and weapons exception or the hearing officer has lifted the “stay put” provision or the parent and school agree otherwise. If the child is removed due to weapons, drugs, or the probability of injury, the child must return to his placement prior to the interim alternative setting at the end of forty-five calendar days unless the parents and local education agency agree otherwise [Section 615(k)(7)]. The 1997 Amendments also addresses children not yet eligible for special education and related services. A child not yet found eligible may be protected by IDEA if the local education agency had knowledge of a disability prior to the misconduct [Section 615(k)(8)A)]. A local education agency will be considered to have had prior knowledge of a disability if the parent has expressed concern in writing (unless the parent is illiterate or
44 has a disability and cannot write) that the child is in need of special education and related services, or the behavior of the child indicates the need for special education and related services, or the parent has requested an evaluation of the child, or the teacher or other school personnel have expressed concern about the child’s behavior or performance to the director of special education or other local agency personnel [Section 615(k)(8)(B)]. Without this knowledge, the child can be subjected to the same disciplinary procedures as children without disabilities [Section 615(k)(8)(C)(i)]. If, however, the parents of the child request an evaluation during the period of time during which the child is subjected to regular disciplinary procedures, the evaluation must be done in an expedited manner. If the child is determined to have a disability, considering the evaluation information collected by the school and the information provided by the parents, then special education and related services will be provided. Pending the evaluation results, the child remains in the educational placement determined by the school authorities [Section 615(k)(8)(C)(ii)]. Students with a disability are not protected from reports to appropriate authorities. Students with disabilities who commit crimes or require other judicial intervention, may be reported to law enforcement officials and judicial authorities [Section 615(k)(9)(A)]. Agencies reporting the crime are responsible for ensuring that copies of special education and disciplinary records are provided to the authorities to whom the crime is reported [Section 615(k)(9)(B)]. The 1997 Amendments add further clarification of attorney fees. Attorney fees are not allowed for services at an IEP meeting, unless so ordered by a hearing officer or a judge in a civil case. They may also be prohibited for a mediation hearing which was conducted prior to the filing of a complaint [Section 615(i)(3)(D)(ii)]. The six principles of the 1997 Amendments to IDEA strengthen academic expectations and accountability for over five million students in our nation who have disabilities. Twenty-three years after the passage of PL 94-142, the law which governs
45 special education in our schools has evolved to a new level of federal protections and guarantees (National Information Center for Children and Youth with Disabilities, 1997).
Administration of Special Education The responsibilities of the school administrator include following the laws which govern the education of all students, including students with disabilities. Administrators need to be knowledgeable of the law and able to apply that knowledge in their routine duties. To be effective educators, there is a need to be knowledgeable of public school law and its impact on daily school operations (Reglin, 1992, p. 26).
School administrators must be aware of the consequences for failing to operate within the law. Administrators are faced with ongoing decisions regarding the supervising of students and staff, hiring, planning, improving instruction, and keeping schools safe. On a daily basis, school administrators face decisions that could result in litigation (Yurek, 1998).
The law which governs the education of students with disabilities is not always clear and easy to apply. The law is subject to periodic review and amendments and it refers to individualized decisions which pertain to each child with a disability in a unique way. For example, what is considered to be the least restrictive environment for one child may be very different from that of another child. The evolving nature of educational philosophy and the constant need for individual consideration of each student means that there will always be new permutations to consider and new legal ramifications of educational decisions to litigate (Gorn, 1996, p. ix).
Litigation in special education has increased since the passage of P.L. 94-142 in 1975. Underwood and Noffke (1990) have reported on a national survey of superintendents who reported an average of one law suit per year for each school district. In their category of student related issues, they found that special education represented the largest area of litigation. According to Zirkel (1993), cases in special education continue to be litigated
46 due to the individual perspective used in determining what is free and appropriate education, inclusion practices and their relation to the least restrictive environment clause, attorney fees, and compensatory damages. In 1989, Zirkel and Richardson reported that special education was the one area in education marked by significant increases in federal and state litigation. Gorn (1996) reviewed judicial opinions which had been reported in the Individuals with Disabilities Education Law Report from 1978 to May of 1996. Her selection process included only written opinions which focused on disputes between parents and school districts and found 1,001 cases which matched her criteria. When these opinions were ranked by state, according to incidence, Virginia ranked fifth. Only four states had a higher number of opinions than Virginia. When these same judicial decisions were arranged by year, the number of opinions ranged from a low of 10 in 1978 to a high of 97 in 1995, indicating a considerable increase in litigation. A school administrator who is knowledgeable of special education law can make decisions which protect the rights of students with disabilities and avoid litigation. The role of the principal in the administration of special education has evolved over the years along with the laws which govern students with disabilities. The concept of education for all children with disabilities is now mandated and principals are expected to be more competent in administering special education in their schools than ever before. School Administrators’ Knowledge of Special Education Law The laws which govern special education are highly procedural. They have been periodically reviewed and amended by Congress and clarified and refined by case law. School administrators are required to be generalists as their daily work spans a wide range of responsibilities. Yet they must be knowledgeable of the laws which govern special education if they are to protect the rights of students with disabilities and avoid costly litigation. The level of knowledge that administrators have and the factors which influence administrator knowledge are areas for investigation.
47 In 1981, Cline investigated the special education law knowledge of elementary and secondary principals. He found that the more administrative experience (years) a principal had, the less knowledgeable they were. The principals who had 10 or fewer years of experience, obtained higher scores on the knowledge instrument used. The principals who had more than 10 years of experience demonstrated less knowledge. As P. L. 94-142 had only recently been passed, it was possible that the administrators who were still in training at the time of its passage, or immediately afterward, were exposed to specific training in the new special education law. Cline found no differences in knowledge levels of elementary and secondary groups. However, he did report significantly lower knowledge scores (p.05).
She did find that principals who had participated in pre-service training in special education received significantly higher scores in their attitudes toward mainstreaming. In 1990, Bagnato surveyed secondary school principals’ and child study chairpersons’ knowledge of special education law as it related to suspension and expulsion of handicapped students. Her results were that child study chairpersons demonstrated a significantly higher level of knowledge and ability to apply their knowledge. Bagnato examined the relationship between knowledge of law as it relates to discipline of handicapped students and the variables of district size, role, years of experience, and the number of law courses taken. She found that role accounted for 8.6% of the variation which occurred in respondents’ knowledge of the law (R2 = .086).
A second analysis was conducted to determine the relationship between these variables and application or the ability to apply knowledge to hypothetical situations. Role of person responding accounted for 4.9% of the variance in application (R2 = .049).
The two roles considered were principal and special education chairperson. Special education chairpersons demonstrated greater knowledge and ability to apply the law. It was also reported that both groups failed to demonstrate a reliable knowledge of special education law regarding suspensions and expulsions as there were “…gaps in their understanding of key issues in the suspension of handicapped students” (Bagnato, 1990, p.79).
Clark (1990) conducted an investigation in Mississippi into the knowledge of special education law in selected areas. Special education was only one of ten areas of school law which were studied. His results indicated a significant difference in knowledge of school law among three groups, superintendents, principals, and teachers, with
49 superintendents scoring the highest. The respondents who had completed a law course had significantly higher scores than those who had not (F value of 29.56, p = .0039).
As years of experience increased, knowledge scores decreased. Hines found that position, school size and school level were not significantly related to administrators’ knowledge of special education law. The mean correct response rate for the respondents was 41% and the author indicated that this was inadequate as it failed to demonstrate mastery of the content. Another finding in the study was that those administrators who had completed a school law course with a special education component or had participated in law in-service training scored significantly higher than those who reported no preparation. Theller (1995) also investigated knowledge of special education law. Elementary principals’ and special education supervisors’ knowledge was significantly lower for those with fewer years of experience, certified before 1977 and located in cities (F value of 4.09, p