A Brief on Special Education Jurisprudence
An overview of the laws applicable to special education law will provide context for the current case law. The Individuals with Disabilities Education Act (IDEA) became effective in 1977, and has been amended five times. Originally enacted to ensure a free appropriate public education (FAPE) for all students regardless of their disability, this law changed the landscape of how school districts would interact with children with disabilities. The requirements of IDEA are very specific, and managed by the Office of Special Education Programs (OSEP) of the Department of Education.
Section 504 of the Rehabilitation Act of 1973 is another important law that applies to children with disabilities. Section 504 makes clear that no child with a disability will be excluded from participation in any program or activity. As applied to public schools, Section 504 requires that schools must supply a free appropriate public education (FAPE) to disabled students but does not require an Individual Performance Plan (IEP). Whereas IDEA provides guidance on the development of an IEP, Section 504 requires provisions to be made for children to have an equal opportunity to participate in school programs. Unlike IDEA , Section 504 does not require that a school district find a child eligible for special education services.
The Americans with Disability Act (ADA) was signed into law in 1990 as an extension of Section 504 to prohibit discrimination against individuals with disabilities. The ADA has become an effective litigation tool and has influenced IDEA and Section 504. The ADA is enforced by the Department of Justice.
Supt. of Sch. Comm of Worcester v. Rachel H. and Mass. Department of Education. The key issue in this case is whether the activity of a school district is federal action subject to U.S. District Court jurisdiction under IDEA or Section 504. The child in this case had attended the Massachusetts public schools and had been diagnosed with autism. Massachusetts did not offer services suitable to the child and her family proposed to send her to a private school at their expense. The family then filed suit and the United States District Court for the District of Massachusetts held that the United States had a right to full reimbursement.
Subsequently, the First Circuit overturned the decision stating that the United States did not grant jurisdiction over cases involving the secretary of education. The case was then appealed to the U.S. Supreme Court, and certiorari was granted on December 1, 2006.
School Committees of Burlington v. Massachusetts Department of Education. In this case, Burlington School District removed the student to a private placement. The parents paid for the expense themselves and filed suit to recover those expenses. The First Circuit distinguished the reimbursement of attorneys’ fees from reimbursement of tuition into two categories. Category 1 expenses related to actions having procedural protections guaranteed under IDEIA (i.e. evaluation, placement and review) category 2 were not such actions (i.e. sending the child to a private placement). The court awarded full reimbursement without any deduction, but did find that the attorney’s fees should only be reimbursed to the parents’ lawyer and not the law firm that represented them throughout both levels of the Massachusetts court system. The Supreme Court granted certiorari on September 26, 2006.
Key Court Cases of 2023
The cases below are some of the most notable special education cases of 2023.
N.G. v. Williamson County Schools
Issues: This case involves an IEP that provides insufficient behavioral and physical therapy services to a student with autism. The student had additional needs for support, including the use of a wheelchair, but the services were not included in the IEP. The parents filed for due process against the school district, but the administrative law judge (ALJ) decided in favor of the school district.
Impact: You should take note of the ALJ’s decision and make sure your child’s IEP contains all relevant information.
How It Affects Schools and Families
Court decisions determine not only the manner in which schools are permitted to implement special programs, but also the funding that will be available for school districts to provide these services. Moreover, such court rulings may serve as barometers to the adequacy of the services being provided to students and to the professional development needs of those who work with students who have disabilities. In these ways, such decisions may have direct implications for school policy development and implementation at the district, building, and classroom levels. In order to accommodate the judicial edicts pertaining to the services being provided to a child prior to the next court hearing, the IEP may have to be revised to reflect the proposed special program. The revision may affect every section of the IEP, from present levels of performance to transition plans. Beyond IEPs, changes in law also directly impact policies relating to funding and personnel. Even when school funding agencies do not allocate additional funds for new special education services, ruling can impact how a school or district reallocates funds that are already available. Similarly, the interpretation of laws that govern the ways in which schools groups children with disabilities may also affect how schools group all students, not just those with disabilities. The rulings about to be issued by the court will also impact families in several significant ways. They will address concerns about the adequacy of services being provided to students with disabilities, and the degree to which certain facilities and programs are accessible. Changes to special education funding also will both directly and indirectly affect participating families. Finally, the law typically requires that a school or district provide parents notice of their rights when a change to special education services – no matter how small – is being considered.
Recent Patterns in Special Education Lawsuits
Trends observed in the special education cases can impact how you build and defend IEPs. These trends usually move from Administrators up through the courts. Examples of areas I have seen for the last 10 years include: Emerging Trends: 1. Inclusion. Federal law does not dictate, and many of the Federal cases on inclusion assume inclusive placements. Even if the child is determined to need special education , inclusion is expected (unless there are certain extenuating circumstances). Remember also that "removing" kids from grades 4-8 can violate the law (if removed for core subjects). We are seeing schools really dig their heels in and saying expansion into more and more areas will not be done (unless forced to by Court). 2. Technology. This is a big one we will start seeing more and more of in spite of technology already being embedded the schools. Depending on the sophistication of the technology, this could take the form of assistive technology or simply an expectation to allow all students have access to technology. 3. Mental Health. This is huge and growing. Federal courts are mandating the inclusion of services from Medicaid or private insurer(s) in IEPs. This is still a developing area and should be dealt with separately.
Insights and Analysis from the Experts
In this section, quotes from experts in the field of special education law and advocacy, including at least one reviewer, should be used to give insight into the current state of the law both within the special education community and the greater legal community.
As far as the general public is concerned, it is not clear what the effects of these cases will be. So what does some of the special education community think?
Brian Parde, a nationally known advocate living in California, confirmed the fears of many. "Overall, I’d say that states will throw more contracts at outside providers and let the contractors fight out the difference in court over how those contracts are actually implemented…Does everyone have the financial wherewithal to get a lawyer to pursue a case?" (UC Davis Family Protection News, 2012)
Yet others take a different view. Jennifer G. Apps, an attorney with law firm Withey Morris in Albuquerque, New Mexico, told SpecialEdAdvocate.com that "[w]e may see parents continue to pursue claims under Section 504 of the Rehabilitation Act of 1973 or sue on other accountability bases for damages related to systemic failures in special education programs. And I think that advocacy groups will continue to push for policy changes even if they have to do it using tools other than litigation."
However then there is the concern that if states use litigation avoidance strategies, they may actually reduce their special education programs. Heather Eisenhower, a Washington, D.C., based a Special Education Advocate with around a decade of experience, stated that "the most dangerous implication of both cases is that states could use strategies to limit their obligations to provide FAPE [Free, Appropriate, Public Education] to students with disabilities enrolled in private schools that lead to systematically underfunding special education programs in public schools. Coupled with the Race to the Top priorities for state assessment programs, we may see a lack of meaningful, uniform information about how effectively states are meeting the needs of all students."
Yet through whatever new policy of litigation avoidance or special education budget slashing that the effects of these and other cases could cause, the reporters ask: "who will ultimately pay the price?"
Information for Parents and School Professionals
As the legal landscape of special education law can be complex and ever-changing, parents and educators may benefit from seeking out additional resources to help navigate their rights and best practices in the classroom. Here are some practical tips and resources to consider:
Advocacy and Support: Be proactive and know your legal rights under IDEA and FAPE. The National Parent Technical Assistance Center provides helpful information on the IDEA laws, regulations, and sources for assistance.
Collaboration and Communication: Build a collaborative relationship with the IEP team, including educators and service providers working with the child. Keep open lines of communication with the team, and ask for regular updates on student progress and any modifications or changes that are made to the IEP.
Legal Assistance: If issues arise that cannot be resolved collaboratively, consult with an advocate or attorney specializing in special education law . Resources such as the Council of Parent Attorneys and Advocates lists advocates and attorneys by state, while Wrightslaw provides essential information and resources on special education law and advocacy.
Preventive Measures: Be proactive in recognizing potential areas of conflict or misunderstanding and address them immediately. This may include requesting an IEP meeting sooner than required, seeking additional evaluations, or rewriting specific sections of the IEP to reflect the child’s present levels of performance and make specific, measurable goals.
Professional Development: Educators and administrators are encouraged to attend professional development and special education training opportunities to stay informed on the most current legal requirements, trends, and best practices. Training for specific disabilities, behavior management, and mental health issues may be particularly beneficial. Seek out professional development workshops, networks, and resources through the applicable Department of Education and local special education parent/teacher organizations.