Return to Topics page

Special Education

1.         The Sources of the Rights of a Student with Disabilities

2.         The Individuals with Disabilities Education Act (IDEA)

3.         Section 504

4.         The Americans with Disabilities Act (ADA)

5.         The Committee on Special Education

6.         Individualized Education Plan (IEP)

7.         If the Parents Disagree with the IEP

8.         When A Person is Someone with Disabilities under section 504 and the ADA

9.         Making Schools and Programs Accessible

The Sources of the Rights of a Student with Disabilities

Students with disabilities receive protections under three federal laws: the Individuals with Disabilities Education Act (IDEA), section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA).

The Individuals with Disabilities Education Act (IDEA)

Unlike the other two laws, strictly speaking, IDEA is not a civil rights statute. Technically, IDEA is a funding statute, providing funding for education programs to states willing to commit to requirements established imposed by IDEA. School districts become covered by IDEA when they seek funding for special education programs from the state. New York State receives funding under IDEA, and, as a result, school districts in New York State must comply with IDEA.

Generally speaking, private schools do not have to comply with IDEA, and this continues to hold true even when a school district places a student with disabilities in a private school. However, a school district cannot avoid its responsibilities under IDEA by simply placing a student with disabilities in a private school. The school district remains responsible to the student under IDEA. What this means is that, if a private school fails to comply IDEA, the student can hold the school district responsible for the non-compliance by the private school. This catch motivates the school district to obtain compliance with IDEA from the private schools in which it may place students. Typically, school districts get compliance by entering into contracts with the private schools that require compliance with the equivalent of the requirements in IDEA. If a private school refuses to enter into a contract with a school district, the private school may become a inappropriate placement for students with disabilities, which forces the school district to find more suitable placements for the students.

Students with disabilities placed in private schools by their parents are also entitled to special education services under the IDEA, if they otherwise qualify. As with students placed in private schools by school districts, the school districts, not the private schools, are responsible for compliance with IDEA. The school districts are free to provide services at the private schools, but they are not required to do so. Thus, students placed in privates schools by their parents may be required to travel to other locations to received services they are otherwise entitled to receive under IDEA.

IDEA requires states to provide students with disabilities with a free appropriate public education (FAPE). Whether a particular set of educational services is appropriate for a particular student is an issue that gives rise to most disputes under IDEA. IDEA does not cover educational institutions beyond high school.

An appropriate education for students 16 years and older includes transitional services, which are suppose to start preparing students for the world beyond high school, whether that is college (or other training school) or the workplace.

The cornerstones of the process created under IDEA are what are called in New York State the committee on special education (CSE) and the individualized education plan (IEP). The committee creates a plan for each qualified student each academic year. IDEA establishes who belongs to the committee for each student, and also establishes what the plan must contain.

To qualify for services under IDEA, a student must fit under one or more of 13 categories of disabilities established under IDEA regulations (IDEA itself has 12 categories), and be in need of special education services. The need requirement gets to the fact that some students may have disabilities, but the disabilities may have no effect on their ability to learn. These students can be placed with non-disabled students. IDEA is not concerned with disabilities. Disabilities are an issue only with respect to qualifying for services. IDEA is primarily concerned with services that will assist students with disabilities in overcoming obstacles to learning which are caused by the disabilities. IDEA does not want students to be unnecessarily separated out simply because they have a disability.

The 13 categories of IDEA disabilities are: (1) mental retardation, (2) hearing impairments including (3) deafness, (4) speech or language impairments, (5) visual impairments including (6) blindness, (7) serious emotional disturbance, (8) orthopedic impairments, (9) autism, (10) traumatic brain injury, (11) multiple disabilities, (12) other health impairments, and (13) specific learning disabilities.

Some of these 13 categories are vague. What does that category mean? Further guidance about who might be covered by a particular category is provided under regulations established under IDEA, and cases interpreting IDEA and those regulations.

School districts sometimes have a tendency of minimizing or forgetting about certain categories. For example, it is so easy to consider students with serious emotional disturbances as being nothing more than disciplinary problems. When school districts do this, these students might end up getting expelled, and never getting any real education.

The experts who are pivotal in deciding whether students qualify for special education services are sometimes only vaguely familiar with the 13 categories in IDEA. When this is so, these experts may tend to focus only on, for example, learning disabilities. This tendency results in some students qualifying only in certain categories, while other students falling in other categories receive no services. Even when an expert states that a student needs special education services, the expert may never be clear about the need the student has for services. When this happens, the committee may fail to see how a student qualifies for special education services, and deny a request to have a child classified..

A student with disabilities may not fit into any of the 13 categories. Others may fit into one or more categories but may have no need for special education services. Both of these groups of students with disabilities would have no rights under IDEA, but they may have rights under section 504 and the ADA. Return to Top

Section 504

Between section 504 of the Rehabilitation Act of 1974 and the ADA, section 504 is the older law. Both laws use the same definition of disability. The Rehabilitation Act, like IDEA, is largely about funding, but section 504 operates more like the ADA, which is a true civil rights statute. Section 504 covers any entity, public or private, receiving a certain (fairly minimal) level of federal funding. Covered entities can include school districts, private schools, and public and private colleges and universities. The critical question is whether the entity is receiving the requisite level of federal funding. Unlike IDEA, section 504 does not require a covered entity to provide special services for persons with disabilities. Like the ADA, section 504 only requires that covered entities provide access to existing programs on a basis which is substantially equal to persons without disabilities. Like the ADA, section 504 requires reasonable accommodation, but reasonable accommodation is not considered to be the same as giving special services.

At the pre-school, elementary and secondary school level, section 504 will cover school programs that are not necessarily covered by an IEP for a student. If a program is not covered by an IEP, then, for that student, the program will not be covered by IDEA. Thus, section 504 supplements the rights of students with disabilities who are covered by IDEA.

IDEA does not cover anything beyond the secondary school level, but section 504 would. As a result, section 504, along with the ADA, offers students with disabilities rights which they would otherwise not have at the college level, or in other post-secondary settings.   Return to Top

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act of 1991 (ADA) is divided into three titles. Title I is about employment. Title II covers public entities, including school districts and public colleges and universities. Title III covers public accommodations, which could include entities like restaurants and amusement parks. Title III could also include entities such as private schools, and private colleges and universities. Unlike section 504 and IDEA, a entity can be covered by the ADA without receiving any federal funding.

The ADA uses a definition of disability which is the same as the definition used by the Rehabilitation Act. Unlike IDEA, the ADA does not require a covered entity to provide special services for persons with disabilities. Like section 504, the ADA only requires that covered entities provide access to existing programs or facilities on a basis which is substantially equal to persons without disabilities. Like section 504, the ADA requires reasonable accommodation, but reasonable accommodation is not considered to be the same as giving special services.

At the pre-school, elementary and secondary school level, the ADA will cover school programs that are not necessarily covered by an IEP for a student. If a program is not covered by an IEP, then, for that student, the program will not be covered by IDEA. Thus, the ADA supplements the rights of students with disabilities who are covered by IDEA.

 IDEA does not cover anything beyond the secondary school level, but the ADA would. As a result, the ADA, along with section 504, offers students with disabilities rights which they would otherwise not have at the college level, or in other post-secondary settings. Return to Top

The Committee on Special Education

            The name, Committee on Special Education (CSE), would seem to imply that this committee is something high level. In reality, each student classified as having disabilities under IDEA has a unique committee which is supposed to meet at least once per year to establish or revise an Individualized Education Plan (IEP) for that student.

            The membership of a committee for any particular student is flexible, depending on the needs of the student and the existing placement. A committee could include a representative of a private school, if the student has been placed in a private school. Generally, the members of a committee are (1) the parents of the student with disabilities; (2) at least one regular teacher of the student; (3) at least one special education teacher of the student; (4) a school district representative who is an expert on special education, and knowledgeable about the general curriculum and special education resources available to the school district; and (5) if another member is not already able to fill this role, an expert able to help interpret evaluation results. In New York State, there is suppose to be a permanent parent member of the committee, but the parent of the student with disabilities may ask to have this parent member excluded. If the student is willing and able to participate, the student with disabilities is also a member of the committee. Student participation is particularly helpful and desired when planning transitional services.

More importantly, IDEA requires that the parent members and, to a lesser extent, the regular teacher members of the committee be given a meaningful opportunity to participate. Other procedural safeguards assure that parents, in particular, will have real input into the process of classifying their child, and designing a program that will meet the needs of the child. Return to Top

Individualized Education Plan (IEP)

            An Individualized Education Plan (IEP) is essentially the master plan for the education of a student with disabilities. The committee on special education is responsible for developing IEPs. IEPs are not imposed by school districts. Rather, they are the result of a collaborative process in the committee on special education, which is suppose to take into consideration the input of both parents and teachers of the student with disabilities. An IEP must be developed or revised for each student with disabilities each academic year. It is through the IEP that school districts provide students with disabilities a free appropriate public education.

Under IDEA, an IEP is the product of a careful and detailed evaluation of a particular student. In other words, there are not suppose to be standard IEPs. The process is suppose to take into account all information concerning the student which may be relevant, including the results of tests and the reports of evaluations by appropriate experts. School districts must perform an evaluation at least once every three years to assist in determining whether any changes in the IEP are required, but parents may request a new evaluation as often as once per year.

If the parents disagree with the evaluation conducted by the school district, the parents may request an independent educational evaluation (IEE). The independent educational evaluation is conducted at the expense of the school district, unless the school district can show at a hearing that an independent evaluation is not necessary. Even if a hearing officer decides that the independent educational evaluation should not be at the expense of the school district, the parents may still have an independent evaluation conducted at their expense, and the committee must consider the results of that independent educational evaluation in developing an IEP.

Under IDEA requirements, IEPs are very detailed documents. IDEA explicitly sets out what information at minimum needs to be included in an IEP and in what detail. Generally, the IEP must detail the educational and other services the student is to receive, including the frequency and location of the services. The IEP must also provide for ways to measure the effectiveness of the services and the progress of the student. An IEP can call for the placement of the student in a private school, if the school district is otherwise unable to provide that student with a free appropriate public education. A school district can be ordered to revise an IEP if it fails to contain the required details. Return to Top

If the Parents Disagree with the IEP

When a disagreement arises about what constitutes a free appropriate public education for a student with disabilities, that disagreement is most likely to arise out of a disagreement over the contents of an IEP. When parents disagree with the contents of an IEP, the parents can have the IEP reviewed.

New York State has a two-tiered system of administrative review. At the first level, parents can have the IEP reviewed by an impartial hearing officer (IHO or HO). The parents request this review of the school districts, generally from the director of special education. If the parents or the school district are not satisfied with the results of this level of review, the parents or the school district may pursue an appeal before a state review officer ("SRO"). A review by a state review officer is requested of the New York State Department of Education. If the parents or the school district are not satisfied with the result of this second level of administrative review, the parents or the school district may take the case to either state or federal court. More often than not, cases taken this far end up in federal court. Once in court, a case can go all the way to the United States Supreme Court, although this rarely happens.

If the parents succeed in the review of the IEP, the parents may be entitled to an award of attorneys fees and costs. In other words, the school district may end up becoming responsible for the costs of the attorney hired by the parents to represent the interests of the student. This award is only for the services of an attorney in the administrative hearings or in court. Normally, the school district will not be held responsible for the costs of an attorney retained to assist the parents in a CSE meeting to develop an IEP.

Once in court, parents are actually required to hire an attorney to represent the interests of their child. This is so because, as far as the courts are concerned, the real party in interest is the student and not the parents, and the courts want to make sure that the interests of the student are adequately protected.

If parents disagree with a modification of the IEP involving a new placement for the student, under provisions called stay-put provisions, the student remains in the old placement until the completion of the review process.

If the parents disagree with a placement, the parents may place the student in a private school which the parents believe is an appropriate placement. With certain other important limitations, if the parents succeed in the review process, the parents would be entitled to reimbursement of tuition and other expenses paid in placing the student in the private school. This unilateral placement of a student in a private school should be done very cautiously.

Generally, parents need to be up-front with the school district about their decision to place the student in a private school. To increase the chances of getting tuition reimbursement, parents should tell the school district that they intend to place the student in private school, and tell the school district where they are going to place their child. Parents should not keep anything about the private placement secret from the school district. Return to Top

When A Person is Someone with with Disabilities under section 504 and the ADA

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) define the term disability in the same way. Under each law, there are three definitions for the term. The most important of the three defines disability as involving an individual with a physical or mental impairment that substantially limits one or more of the major life activities of [that] individual. The other two definitions of disability incorporate the first definition and involve persons not necessarily having an actual disability, but who either have a record of having had a disability, or who is regarded by others as having a disability.

Before the ADA, parties to a lawsuit rarely disputed whether a person had a disability. With the ADA, this issue became a central issue, with most persons suing under section 504 or the ADA losing because the courts did not consider them as having a disability as defined by section 504 or the ADA.

However, more recently, there seems to have been a shift in the way attorneys prove that a person has a disability. Attorneys have begun to rely more on evidence showing how a disability affects the way a person goes about normal daily activities. If an attorney can demonstrate that a disability affects in an important way how a person goes about normal daily activities, the court may be more likely to accept that that person meets the legal definition of disability. Without meeting that legal definition, a person with disabilities is not even covered by section 504 or the ADA.

This emphasis that courts have placed on the definition of disability has led to some very odd results. For example, the United States Supreme Court said that two sisters who were legally blind were not persons with disabilities. The Court has also ruled that a man with one arm and another with one eye were not persons with disabilities.

Most of this activity concerning the definition of disability has involved employment cases. Schools, whether pre-school, primary, secondary or post-secondary, seemed less likely to dispute whether a person has a disability qualifying that person for the protections offered by section 504 and the ADA. However, this is changing, and schools are increasingly relying on the very restrictive interpretations given to the term disability given by courts in employment cases.  Return to Top

Making Schools and Programs Accessible

Under both section 504 and the ADA, schools have an obligation to make both their buildings and programs accessible, but there are limitations on this obligation, depending on whether the facility involved is an existing structure, a structure which has undergone a renovation, or a new structure.

Generally, the obligation to make buildings and facilities accessible is lowest when the structure involved is an existing structure. In this case, schools are obligated to make the structure accessible only to the degree it is readily achievable. Whether accessibility is readily achievable depends on costs, architectural feasibility, as well as other factors, such as other legal requirements.

If a structure is undergoing renovation, the school would have an obligation to make those parts of the structure undergoing renovation accessible, but need not do anything about any part of the structure not undergoing renovation. Even in those areas undergoing renovation, the modifications needed to make the renovated area accessible would need to be reasonable in the context of the renovation. Thus, if renovation consists of only painting existing walls, requiring the school to move walls or install ramps to make the area accessible might be considered to be unreasonable in light of the extent of the renovations being undertaken.

When a school is constructing a new structure, the school has the highest level of obligation to make sure the new structure is accessible, although a school would not have an obligation to anticipate every possible accessibility issue that might arise. The obligation is still measured against a standard of reasonableness. Return to Top