Disability Law

Special education programs in the United States originated during the early 19th century with special schools for handicapped children. It was regarded as entirely lawful to excluded severely handicapped children from regular schools. Indeed, some courts ruled that "academically capable" students, that is capable of performing regular work without accommodation, could be excluded from regular public school classes. In those states, students suffering from cerebral palsy or poliomyelitis might be excluded from public schools, and in the absence of special public schools, their parents were forced to find and pay for private residential schools or private tutors.

Gradually, educators began to recognize that disabled and non-disabled students alike benefit from integrated education. In the 1950's some districts began to integrate students with disabilities into their regular programs. Such students, when given a chance, performed with distinction in class and in extra-curricular activities. Deaf students played football. Students with limb impairments performed in gymnastics and wrestling. But despite emerging proof that such programs could succeed, many districts continued the old practices.

In 1971 a federal district court ruled that retarded children in Pennsylvania were entitled to a free public education. Pennsylvania Association for Retarded Children v. Commonwealth, 334 F.Supp. 1257 (E.D.Pa. 1971). The consent agreement which followed required due process and regular re-evaluations. A subsequent decision in the District of Columbia extended this approach to all handicapped students. Mills v. Board of Education, 348 F.Supp. 866. The Individualized Education Plan embodied in that case became the basis for subsequent legislation.

Section 504: In 1973, Congress passed Section 504 of the Rehabilitation Act of 1973, which requires that:

No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance ....

Section 504 targets organization which receive federal financial assistance. An entity, such as a school district, comes under the mantle of section 504's requirements by receiving federal financial assistance. Section 504 is not an education law, it covers far more than school districts. Section 504 applies to road construction contractors, state and local government, and any other entity which receives federal financial assistance. Its protections cover disabled students and teachers. So, for example, section 504 prevents a school district from denying employment to disabled teachers. The protections afforded disabled students represent a special application of section 504.

Education for All Handicapped Children Act: In 1975, Congress passed P.L. 94-172 assuring the right of all handicapped children to a public school education. 20 U.S.C. Section 1401 et seq. As the Supreme Court stated in the Rowley case, the Act represented "an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" The Act broadly defined "handicapped children" to include "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities." Section 1401(1).The Act contained the following basic tenets:

Handicapped children have a right to a free appropriate public education (FAPE).
They should receive an individualized education program (IEP)
Special education and related services should be available
Due process should protect parents and students in determining appropriate education
Students should be educated in the least restrictive environment, that is, the regular classroom or the environment closest to the regular classroom

The IEP envisioned by the Act, was to be prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child. It would consist of a written document containing

(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." Section 1401(19).

Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. Section 1415(b)(2) and (c) Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 1415(e)(2).

Following enactment, the demand for special education services rose dramatically and litigation began to define the parameters of rights under the Act. Two subsequent pieces of major legislation have helped to define those rights.

Americans with Disabilities Act: In 1992, Congress passed the Americans with Disabilities Act. The primary focus of the ADA was to extend anti-discrimination protections to employees of entities not receiving federal financial assistance. In addition, the ADA created new statutory private rights of action to redress discrimination against the disabled. Title II of the Americans With Disabilities Act (ADA) requires that: No qualified individual with a disability shall be excluded from participation in, or denied access to, programs or activities; denied benefits or services; or be subjected to discrimination by any public entity. Disability under Title II of the ADA are those that place substantial limitations on one or more of an individual's major life activities. For purposes of coverage under the ADA, the term disability means, with respect to an individual (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.

Individuals with Disabilities Education Act (IDEA) represent the first major revision to the Education of all Handicapped Children Act of 1975 in more than 23 years. The Department of Education has described IDEA '97 as retaining (and strengthening) the basic rights and protections under the original IDEA -- including:

the right to a free appropriate public education (FAPE) for all children with disabilities, including children suspended or expelled from school; and
the procedural safeguards rights for these children and their parents.

In addition, the authors of IDEA '97 hoped to provide a new and heightened emphasis on improving educational results for children with disabilities, including provisions which ensure that these children

have meaningful access to the general curriculum through improvements to the IEP, and
are included in general education reform efforts related to accountability and high expectations, and that focus on improved teaching and learning.

Numerous regulations implement Section 504 and other federal protections for disabled students. As of July, 1998, the office of Civil Rights, Department of Education, federal regulation 34 CFR 104.34 stated:

(a) Academic setting. A [covered school district] shall educate... each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A [district] shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the [district] that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.....
(c) Comparable facilities. If a [district], in compliance with paragraph (a) of this section, operates a facility that is identifiable as being for handicapped persons, the recipient shall ensure that the facility and the services and activities provided therein are comparable to the other facilities, services, and activities of the recipient.

Regulations implementing IDEA were published in 1999. Detailed information regarding the amendments may be found on the links listed below.

IDEA Information (Council on Exceptional Children)

IDEA Primer (Council on Exceptional Children)

IDEA vs 504 Comparison of Section 504 and IDEA rights

CHADD on Discipline (position paper of ADD advocacy organization)

Dept. of Ed.

EdLaw

WrightsLaw (Information and bookstore)

Kerr (Minnesota law firm--lots of information)