Special Education and the Law: A Guide for Practitioners

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Allan G. Osborne Jr. & Charles J. Russo

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    Preface

    In 1975 Congress enacted sweeping legislation mandating that eligible students with disabilities be provided with appropriate special education services tailored to their unique needs. Most recently reauthorized in 2004, this law, now known as the Individuals with Disabilities Education Act (IDEA), drastically altered the continuum of programs that educators must provide to students with disabilities. Over the years, the IDEA and its regulations have generated more litigation than any other educational legislation in the history of American public schools. Moreover, the IDEA and its regulations created a web of legal obligations about which educators constantly need to be updated. Further, this revised second edition of Special Education and the Law now includes the final version of the regulations that were promulgated in August 2006 incident to the 2004 version of the IDEA. We hope that this up-to-date information will be of use to all readers.

    Given the far-reaching scope of the IDEA and its regulations, this book examines how federal and state courts have interpreted the statute and its regulations, addressing the delivery of special education and related services to students with disabilities. The book is organized around the major procedural and substantive issues in special education law. Specifically, the book examines the substantive and procedural requirements that the IDEA, its regulations, and litigation have placed on school officials. Among the major topics that this book addresses are the rights of students with disabilities to a free appropriate public education, procedural due process, proper placement, the receipt of related services, discipline, and remedies if school officials fail to adhere to the IDEA. The book also traces the legal history of special education while briefly discussing other statutes that affect the delivery of special education services.

    This book is not intended to replace the advice and counsel of a school board's attorney. Rather, it is designed to make school officials, especially at the building level, more aware of the various requirements of the laws governing special education, in the hope that understanding the laws will put them in a better position to implement the myriad legal requirements. As such, readers are cautioned always to consult their school board's attorney when difficult situations arise.

    Chapter 1 provides a historical perspective of the special education movement. It begins with an overview of the various sources of law in order to place the rest of the book in its proper legal context. The chapter then discusses the forces that led to the development of special education legislation in the United States and goes on to review the various laws that currently affect the delivery of special education services and the rights of children with disabilities.

    Chapter 2 presents information relative to the specific rights of students to receive special education and related services. The chapter reviews information on who is eligible to receive services, along with the legal requirements for providing a free appropriate public education in the least restrictive environment. The chapter next discusses the components of an appropriate education and the factors that must be considered when making placement decisions. Also included here is material about when private day school and residential school programs must be provided and when extended school year programs are warranted.

    Students with disabilities are entitled to receive related, or supportive, services to the extent that these services are necessary for them to benefit from their special education programs. Chapter 3 provides detailed information concerning the supportive services that qualify as related services and the circumstances under which they must be provided. The chapter also examines issues surrounding assistive technology and transition services.

    One of the IDEA's unique features is its elaborate due process safeguards. These safeguards are designed to ensure that students with disabilities receive the free appropriate public education that they are guaranteed by the law. Chapter 4 outlines the specific procedural rights that students with disabilities and their parents have under the IDEA regarding children's identification, the assessment of children with disabilities, and the development of children's individualized education programs.

    Unfortunately, since students with disabilities, like students without disabilities, sometimes commit acts of misconduct, they are not immune to being disciplined. Nonetheless, the disciplinary sanctions meted out must not deprive students with disabilities of the free appropriate public education they are guaranteed by the IDEA. Chapter 5 discusses the special procedures that school officials must adhere to when disciplining special education students.

    When Congress enacted the IDEA, it envisioned a system whereby school officials and parents would work together to plan and develop a student's educational program. Congress was not naïve, however. It realized that disputes would arise and included in the IDEA procedures relating to dispute resolution. These procedures are reviewed in Chapter 6.

    Parents have recourse when school board officials fail to provide the free appropriate public education that the IDEA requires. Since the enactment of the IDEA, the courts have provided parents with a number of compensatory remedies in addition to prospective relief. Chapter 7 outlines the remedies available to parents when a school board fails to live up to its responsibilities. This chapter includes information regarding awards of tuition reimbursement, compensatory educational services, and attorney fees, plus a general discussion of punitive damages.

    A new Chapter 8 briefly reflects on the practical issues in dealing with the legal system. Most notably, this chapter reviews the emerging area of preventative law and dispute resolution. The chapter also provides insights for school officials about the value of having a good attorney who is knowledgeable about special education and how to locate such a professional.

    The book includes a brief glossary of terms. The glossary does not cover terms that are defined and explained within the text. Rather, it is designed to define the legal and technical terms with which the reader may be unfamiliar. There are also Internet resources at the end of the book, including Web sites of state departments of education, special education services, and education law.

    Acknowledgments

    We could not have written a book of this magnitude without the support, encouragement, and assistance of many friends, colleagues, and family members. Thus, while it may be almost impossible to acknowledge all who have in some way influenced us and so contributed to this book, we would at least like to extend our gratitude to those who have had the greatest impact in our lives. This group includes all who have contributed to our knowledge and understanding of the subject matter of this book, most notably our many friends and colleagues who are members of the Education Law Association. These professionals have not only consistently shared their knowledge with us but also, more importantly, provided constructive criticism and constantly challenged our thinking.

    We are also most fortunate to work with a group of professionals who understand the importance of our work and provide us with the resources to continue our research. The contributions of many colleagues from the Quincy Public Schools and the University of Dayton can never be adequately acknowledged.

    I (Allan Osborne) especially thank Richard DeCristofaro and Carmen Mariano, Superintendent and Assistant Superintendent, respectively, and the entire administrative team of the Quincy Public Schools for their continuing encouragement and support. I would also like to extend a very warm thank you to the faculty, parents, and students of the Snug Harbor Community School in Quincy, Massachusetts, for more than two decades of inspiration. Special thanks are extended to Bob Limoncelli, Chris Karaska, and Amy Carey-Shinney, who provide a wonderful network of support on a daily basis. A school administrator is no better than his or her secretarial staff. I am fortunate to have the best. Much appreciation and love is extended to Angie Priscella and Mary Anne McLellan for putting up with me. Finally, I wish to thank two good friends and colleagues: Dennis Carini, for providing me with advice, motivation, and many light moments when they were most needed and Carol Shiffer, who, by example, has taught me much about perseverance.

    I also wish to thank my friend and former doctoral mentor, Dr. Phil DiMattia of Boston College, for first encouraging me to investigate many of the issues contained in this book and for continuing to challenge my thinking.

    At the University of Dayton, I (Charlie Russo) would like to express my thanks to Rev. Joseph D. Massucci, Chair of the Department of Educational Leadership; Thomas Lasley, Dean of the School of Education and Allied Professions at the University of Dayton; and my colleagues, Associate Dean Dr. Dan Raisch and Dr. Timothy Ilg, for all of their ongoing support and friendship. I also extend a special note of thanks to Elizabeth Pearn for her valuable assistance in helping to process the manuscript. Thanks, too, to Colleen Wildenhaus for her help proofreading the manuscript and to Marianne E. Graham, University of Dayton School of Law, class of 2007, for her assistance in preparing the resources at the end of the book that contain the various Web sites related to special education.

    I would like to extend my thanks to two of my former professors and long-term friends from my student days at St. John's: many thanks to Dr. David B. Evans who, even while I was an undergraduate, taught me a great deal about the skills necessary to succeed in an academic career. I would also like to thank my doctoral mentor, Dr. Zarif Bacilous, for helping me to complete my studies and enter the academy.

    We would both like to thank our acquisitions editor at Corwin, Lizzie Brenkus, and her predecessor, Robb Clouse, for their support as we conceptualized and wrote both editions of this book. It is a pleasure working with such outstanding professionals and their colleagues at Corwin. They certainly helped to make our jobs easier. Further, we would like to acknowledge the superb job of our copyeditor, Kristin Bergstad, in meticulously going over the manuscript and preparing it for publication.

    On a more personal note, we both extend our appreciation to our parents, Helen J. Russo and the late James J. Russo and the late Allan G. Osborne and late Ruth L. Osborne. Our gratitude can never be adequately expressed. The influence of our parents over the course of our lifetimes has been profound.

    I (Charles Russo) also extend a special note of thanks and appreciation to my two wonderful children, David Peter Russo and Emily Rebecca Russo. These two bright and inquisitive children have grown to be wonderful young adults who provide me with a constant source of inspiration and love.

    Our wonderful wives, the two Debbies, have been the major influence in our lives and professional careers. Our best friends, they encourage us to write and have shown great patience as we ramble on endlessly about litigation in special education. We would not be able to do all that we do if it were not for their constant love and support. Thus, we dedicate this book to them with all of our love.

    —A.G.O.
    —C.J.R.

    Corwin Press gratefully acknowledges the contributions of the following individuals:

    • Kathy Bradberry
    • Exceptional Needs Specialist
    • Hartsville High School
    • Darlington, SC
    • John Casper
    • Supervisor of Secondary Instruction
    • Nelson County Public Schools
    • Bardstown, KY
    • Susan M. Dannemiller
    • Director of SPED and Pupil Services
    • School District of Grafton
    • Grafton, WI
    • Randall L. De Pry
    • Associate Professor, SPED
    • College of Education
    • University of Colorado at Colorado Springs
    • Colorado Springs, CO
    • John Enloe
    • Director of Special Education
    • Sevier County School District
    • Sevierville, TN
    • Lisa Ward, NBCT
    • NTSD TSA Special Education Field Support
    • Oakland Unified School District
    • Oakland, CA

    About the Authors

    Allan G. Osborne, Jr., EdD, is the Principal of the Snug Harbor Community School in Quincy, Massachusetts, and a former visiting Associate Professor at Bridgewater State College. He received his doctorate in educational leadership from Boston College. He has authored or coauthored numerous articles, monographs, textbooks, and textbook chapters on special education law, along with textbooks on other aspects of special education. A past President of the Education Law Association (ELA), he has been a frequent presenter at ELA conferences and writes the “Students with Disabilities” chapter of the Yearbook of Education Law, which is published by ELA. Allan Osborne is on the Editorial Advisory Committee of West's Education Law Reporter and is coeditor of the “Education Law Into Practice” section of that journal. He also serves as an editorial consultant for many other publications in education law and special education.

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and Adjunct Professor in the School of Law at the University of Dayton. The 1998–1999 President of the Education Law Association and 2002 winner of its McGhehey (Lifetime Achievement) Award, he is the author of more than 150 articles in peer-reviewed journals and the author, coauthor, editor, or coeditor of 24 books. He has been the editor of the Yearbook of Education Law for the Education Law Association since 1995 and has written or coauthored in excess of 600 publications. He speaks and teaches extensively on issues in education law in the United States and throughout the world. In recognition of his work in other countries, Charles Russo received an honorary PhD from Potchefstroom University, now the Potchefstroom Campus of North-West University, in Potchefstroom, South Africa, in May of 2004.

  • Resource A: Glossary

    • Administrative appeal: a quasi-judicial proceeding before an independent hearing officer or administrative law judge.
    • Administrative law judge: an individual presiding at an administrative due process hearing who has the power to administer oaths, hear testimony, rule on questions of evidence, and make determinations of fact. The role of an administrative law judge in IDEA proceedings is identical to that of an independent hearing officer.
    • Affirm: to uphold the decision of a lower court in an appeal.
    • Annual review: a yearly review of a student's progress in a special education program and an examination of his or her future special education needs. An annual review may repeat some of the original assessments for purposes of assessing progress but generally is not as thorough as the original evaluation. The student's individualized education program is revised and updated at the annual review conference.
    • Appeal: a resort to a higher court seeking review of a judicial action.
    • Appellant: the party who appeals a decision court to a higher court.
    • Appellate court: a court that can hear only appeals and so has appellate jurisdiction.
    • Appellee: the party against whom an appeal is made to a higher court.
    • Case law: results from court opinions; this is also referred to as common law or judge made law.
    • Certiorari (literally, to be informed): a writ issued by an appeals court indicating that it will review a lower court's decision; abbreviated as cert.
    • C.F.R. (Code of Federal Regulations): the repository of regulations promulgated by various federal agencies to implement laws passed by Congress.
    • Civil action: a dispute between two private parties or a private party and the state to enforce, redress, or protect private rights.
    • Civil right: a personal right guaranteed by the U.S. Constitution or a state constitution or by a federal or state statute.
    • Class action: a suit brought on behalf of named plaintiffs as well as others who may be similarly situated.
    • Common law: the body of law that has developed as a result of court decisions, customs, and precedents.
    • Compensatory damages: a judicial award that is intended to compensate a plaintiff for an actual loss.
    • Consent decree: an agreement between parties to a suit that is sanctioned by a court and that essentially settles the dispute by mutual consent.
    • Contract: an agreement between two parties that creates a legal obligation to do or not to do something; a contract can be written or oral.
    • Criminal action: an action brought by the state to punish an individual who has been charged with committing a crime.
    • Damages: a judicial award to compensate an injured party; damages can be legal (or monetary), in the form of a payment by the party causing the injury, or equitable (see the definition of equitable, below).
    • Declaratory relief: a judicial decree that clarifies a party's legal rights but does not order consequential relief.
    • De facto (literally, by the fact): a situation that actually exists, whether or not it is legal.
    • Defendant: the party against whom a suit is brought.
    • De jure (literally, by law): a situation that occurs by sanction of law.
    • De minimis (literally, about the smallest matter): an item that is small or unimportant, not worthy of a court's concern.
    • De novo (literally, from new): a trial de novo is a situation where a court hears evidence and testimony that may have been previously heard by a lower court or administrative body.
    • Dicta (literally, remarks): a gratuitous statement in a judicial opinion that goes beyond the facts and issues of a case and is not binding on future cases; this is also referred to as obiter dictum (literally, a remark by the way).
    • En banc (literally, in the bench): a judicial session where the entire membership of a court participates in a decision, rather than a single judge or select panel of judges; a rehearing en banc may be granted if a select panel of judges has rendered a decision that is contrary to decisions rendered by similar courts.
    • Equitable relief: justice administered according to fairness; a form of relief that orders a party to do something or to refrain from doing something when monetary damages are inadequate to make an injured party whole.
    • Et sequor(abbreviated as, and more commonly used as, et seq.; literally, and following): a term generally used in a citation to indicate “and the sections that follow.”
    • Evaluation team: a group of individuals who perform assessments on the student to determine whether the child has a disability and, if so, what special education and related services he or she will require. An evaluation team is composed of individuals such as the classroom teacher, a special education teacher, an administrator, a psychologist, the parents of the student (and in some cases the student), and other specialists. Different states have various names for the evaluation team such as multidisciplinary team, committee on special education, pupil personnel services team, or pupil placement team.
    • Ex parte(literally, by or for one party): an action initiated at the request of one party without notice to the other party.
    • Expulsion: a long-term exclusion from school, generally for disciplinary purposes; ordinarily, a disciplinary exclusion of more than 10 days is considered an expulsion.
    • Ex relatione (abbreviated as, and more commonly used as, ex rel.; literally, up on relation or information): a term in a case title indicating that the legal proceedings were instituted by the state on behalf of an individual who had an interest in the matter.
    • Full inclusion: the practice of educating students with disabilities in a fully inclusive setting with children who do not have disabilities; this has also been referred to as mainstreaming.
    • Holding: the part of a court's decision that applies the law to the facts of the case.
    • Independent hearing officer: an impartial third-party decision maker who conducts an administrative hearing and renders a decision on the merits of the dispute.
    • Individuals with Disabilities Education Act (IDEA): the federal special education law, codified at 20 U.S.C. §§ 1400–1482.
    • Injunction: an equitable remedy, or court order, forbidding a party from taking a contemplated action, restraining a party from continuing an action, or requiring a party to take some action.
    • In loco parentis (literally, in the place of the parent): a term that is used in situations where school (or other public) officials act in the place of a child's parents.
    • In re (literally, in the matter of): a situation in which there are no adversarial parties in a judicial proceeding, only a res (thing) for the court to consider.
    • Judgment: a decision of a court that has the authority to resolve a dispute.
    • Jurisdiction: the legal right by which a court exercises its authority; jurisdiction also refers to the geographic area within which a court has the authority to rule.
    • Moot: when a real, or live, controversy no longer exists; a suit becomes moot if, for example, there is no longer any dispute because a student with a disability turns 21.
    • On remand: when a higher court returns a case to a lower court with directions that it take further action.
    • Opinion: a court's written explanation of its judgment.
    • Original jurisdiction: the power of a court, typically at the trial level, to assert jurisdiction at its inception; this is distinguished from appellate jurisdiction, whereby a court may hear only cases on appeal.
    • Per curiam (literally, for or by the court): an unsigned decision of the court, as opposed to one signed by a specific judge.
    • P.L. (Public Law): a statute passed by Congress; the IDEA was initially referred to as PL 94–142, the 142nd piece of legislation introduced during the 94th Congress.
    • Plaintiff: the party bringing a suit to a court of law.
    • Precedent: a judicial opinion that is binding on lower courts in a given jurisdiction; this is also referred to as binding precedent to distinguish it from persuasive precedent (such as dicta) which is not binding.
    • Preponderance of the evidence: the level of proof required in a civil suit; evidence that has the greater weight or is more convincing. Conversely, a criminal case requires proof beyond a reasonable doubt.
    • Pro se (literally, for self): a person who represents himself or herself in court.
    • Prospective: looking toward the future; prospective relief provides a remedy in the future typically by ordering a party either to do or to refrain from doing something.
    • Punitive damages: compensation awarded to a plaintiff that is over and above the actual loss suffered; such damages are designed to punish the defendant for wrongful action and to act as an incentive to prevent similar action in the future.
    • Reevaluation: a complete and thorough reassessment of the student. Generally, all of the original assessments will be repeated, but additional assessments must be completed if necessary; the IDEA requires educators to reevaluate each child with a disability at least every three years.
    • Remand: to return a case to a lower court, usually with specific instructions for further action.
    • Res judicata (literally, a thing decided): a rule that a final judgment of a court is conclusive and acts to prevent subsequent action on the same claim.
    • Reverse: to revoke a lower court's decision in an appeal.
    • Settlement agreement: an out-of-court agreement made by the parties to a lawsuit to settle the case by resolving the major issues that initiated the litigation.
    • Sovereign immunity: a legal prohibition against suing the government without its consent.
    • Special education: instruction specifically designed to meet the unique needs of a student with disabilities.
    • Standing: an individual's right to bring a suit to court; in order to have standing, an individual must be directly affected by, and have a real interest in, the issues litigated.
    • Stare decisis (literally, let the decision stand): adherence to precedent.
    • State-level review officer (or panel): an impartial person (or panel of usually three or more persons) responsible for reviewing the decisions of an independent hearing officer from an administrative due process proceeding under the IDEA. The IDEA provides that if administrative due process hearings are held at the local school district level, provisions must be made for an appeal at the state level.
    • Statute of limitations: the specific period of time within which a suit must be filed.
    • Sub nomine (abbreviated sub nom.; literally, under the name): a situation in which a case was on appeal under a different name than the one used at the lower court level.
    • Suspension: the short-term exclusion of a student from school, usually for less than 10 days, typically for disciplinary purposes.
    • Tort: a civil wrong other than breach of contract; the most common tort is negligence.
    • U.S.C. (United States Code): the official compilation of statutes enacted by Congress.
    • U.S.C.A. (United States Code Annotated): an alternate version of the United States Code that includes annotations to federal and state cases, cross-references to related sections, historical notes, and library references.
    • Vacate: to set aside a lower court's decision in an appeal.

    Resource B: Department of Special Education Web Sites, by State

    Resource C: Useful Special Education Web Sites

    Resource D: Useful Education Law Web Sites

    Legal Search Engines
    U.S. Supreme Court, Federal Courts, and Federal Government Web Sites

    Corwin Press

    The Corwin Press logo—a raven striding across an open book—represents the union of courage and learning. Corwin Press is committed to improving education for all learners by publishing books and other professional development resources for those serving the field of PreK-12 education. By providing practical, hands-on materials, Corwin Press continues to carry out the promise of its motto: “Helping Educators Do Their Work Better.”


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