Legal Issues in Special Education Legal Issues in Special Education provides teachers and school administrators with a clearly written, well-organized, and understandable guide from the perspective of the practitioner without formal legal training. Even though over 50 percent of students with disabilities are now educated in general education classes, most teachers are not required to complete coursework in special education law and can unwittingly expose themselves and their schools to liability for violating the rights of students with disabilities. This practitioner’s guide explicitly addresses the major issues and legal complexities educators inevitably face when dealing with special education legal and policy issues. Using case-based learning to synthesize important legal concepts and principles from leading special education legal cases, this text guides educators, administrators, and parents alike toward a thorough understanding of, and the ability to navigate, many of the current and pressing legal concerns in special education. Kevin P. Brady, Ph.D . is Associate Professor and Program Director, University Council of Educational Administration (UCEA) Program Center for the Study of Leadership and the Law at the University of Arkansas, USA. Charles J. Russo, J.D., Ed.D. is Joseph Panzer Chair in Education, Director of the Ph.D. Program, and Research Professor of Law at the University of Dayton, USA. Cynthia A. Dieterich , Ph.D . is Professor of Special Education at Baldwin Wallace University, USA. Allan G. Osborne , Jr., Ed.D . is the former principal of the Snug Harbor Community School in Quincy, Massachusetts, and former visiting Associate Professor at Bridgewater State College, USA. Nicole D. Snyder, J.D . is a shareholder at Latsha Davis & McKenna, P.C. and represents numerous schools in special education law, education law, and charter school law matters. Legal Issues in Special Education Principles, Policies, and Practices Kevin P. Brady , Charles J. Russo, Cynthia A. Dieterich and Allan G. Osborne, Jr. with Nicole D. Snyder First published 2020 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Taylor & Francis The right of Kevin P. Brady, Charles J. Russo, Cynthia A. Dieterich, and Allan G. Osborne, Jr. to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-32329-2 (hbk) ISBN: 978-1-138-32330-8 (pbk) ISBN: 978-0-429-45149-2 (ebk) Typeset in Minion by Apex CoVantage, LLC To my mother, Eileen Brady, whose struggles and strength of living with a disability taught me the importance of educational access for everyone. K.P.B. To students with disabilities and their families who live the law every day. And my dad who instilled the importance of education and lifelong learning. C.A.D. To Debbie and Debbie with all our love, now, always, and forever C.J.R. A.G.O v Contents List of Illustrations xiii Acknowledgements xiv About the Authors xv Preface xvii I Addressing and Maintaining Special Education Legal Literacy 1 1 Introduction: Making the Case for Special Education Legal Literacy 3 Ignorantia Juris Non Excusat 3 Current State of Special Education Legal Illiteracy in Our Schools 5 Inadequate Professional Development and Specialized Legal Training 7 The Use of Case-Based Learning (CBL) to Address the Special Education Legal Literacy Gap 7 Special Education Law in Practice 13 Legal Case No. 1—IDEA’s “Exhaustion of Administrative Remedies” Rule 13 Fry v. Napoleon Community Schools 13 Questions for Discussion 18 Summary of Important Legal Policies, Principles, and Practices 18 Useful Online Resources 19 Recommended Reading 19 References 19 2 Historical Development of Laws Impacting Students With Disabilities 22 Compulsory Education and the Exclusion of Students With Disabilities 22 The Legal Significance of the Civil Rights Movement 23 Legal Entitlement to an Appropriate Education for Students With Disabilities 24 Individuals With Disabilities Education Act (IDEA) 28 Section 504, The Rehabilitation Act of 1973 29 Americans With Disabilities Act (ADA) 29 Special Education Law in Practice 30 Legal Case No. 2—Sanctioned Exclusion of Students With Disabilities From Public Schools 30 Watson v. City of Cambridge 30 Questions for Discussion 31 Special Education Law in Practice 32 Legal Case No. 3—Rights of Students With Disabilities to a Public Education 32 Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania 32 Questions for Discussion 33 Special Education Law in Practice 34 Legal Case No. 4—Establishment of Due Process Rights for Students With Disabilities 34 Mills v. Board of Education of the District of Columbia 34 Questions for Discussion 37 vii viii • Contents Summary of Important Legal Policies, Principles, and Practices 37 Useful Online Resources 37 Recommended Reading 37 References 38 3 Finding Special Education Legal Information in a Digital Age 39 Primary Sources of Special Education Legal Information 40 Federal and State Constitutions 41 Federal and State Statutes 41 Federal and State Regulations 42 Federal and State Court System 42 Special Education Administrative Rules and Regulations 46 Secondary Sources of Special Education Legal Information 46 Finding Primary Sources of Special Education Legal Information Online 47 Summary of Important Legal Policies, Principles, and Practices 49 Useful Online Resources 50 Recommended Reading 50 References 50 II IDEA 2004: A Legal Primer 51 4 IDEA 2004: Basic Structure and Major Principles 53 Navigating the Statutory Structure of the IDEA 2004 54 Free Appropriate Public Education (FAPE) 58 Nondiscriminatory Evaluation and Appropriate Eligibility Practices 60 Individualized Education Plan (IEP) 61 Least Restrictive Environment (LRE) 61 Parental and Student Participation in the Decision-Making Process 61 Procedural Due Process and Safeguards 62 Additional IDEA 2004 Legal Principles and Provisions Addressed in the Book 63 Summary of Important Legal Policies, Principles, and Practices 63 Useful Online Resources 64 Recommended Reading 64 References 64 5 Student Identification, Evaluation, and Eligibility 66 Zero Reject and the Child Find Provision 66 Evaluation Requirements Under the IDEA 2004 71 Procedural Safeguards Notice for Parents in the Evaluation Process 71 Independent Educational Evaluations (IEE) 73 Reevaluations 74 Student Eligibility 74 Special Education Law in Practice 85 Legal Case No. 5—IDEA’s Zero Reject/Child Find Principle 85 Timothy W. v. Rochester 85 Questions for Discussion 90 Special Education Law in Practice 91 Legal Case No. 6—IDEA Eligibility Requires That the Student’s Disability(ies) “Adversely Impact” the Student’s Educational Performance 91 J.D. v. Pawlet School District 91 Questions for Discussion 93 Contents • ix Summary of Important Legal Policies, Principles, and Practices 94 Useful Online Resources 94 Recommended Reading 94 References 95 6 The Individualized Education Program (IEP) 96 Development of Individualized Education Programs 97 IEP Teams 98 IEP Team Conferences 99 Implementation 100 Draft IEPs and Interim IEPs 100 IEP Revisions 101 Special Education Law in Practice 102 Legal Case No. 7—Right to a Free Appropriate Public Education Requires That Individualized Education Programs Be Implemented as Soon as Possible 102 D. D. Ex Rel. V.D. v. New York City Board of Education 102 Questions for Discussion 104 Summary of Important Legal Policies, Principles, and Practices 104 Useful Online Resources 105 Recommended Reading 105 References 105 7 Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) 107 Definition of Appropriate Education 109 Legal Significance of Board of Education v. Rowley 109 Clarifying the R owley FAPE Standard: The Impact of E ndrew F . 111 Least Restrictive Environment (LRE) 112 LRE and Extended School Year (ESY) Programs 118 Special Education Law in Practice 119 Legal Case No. 8—Definition of Free Appropriate Public Education (FAPE) 119 Board of Education of the Hendrick Hudson Central School District v. Rowley 119 Questions for Discussion 125 Special Education Law in Practice 126 Legal Case No. 9—Clarified Existing FAPE Standard. A Student’s IEP Must Be “Reasonably Calculated to Enable a Child to Make Progress in Light of the Child’s Circumstance.” 126 Endrew F. v. Douglas County School District RE-1 126 Questions for Discussion 129 Summary of Important Legal Policies, Principles, and Practices 130 Useful Online Resources 130 Recommended Reading 130 References 131 8 Related Services, Assistive Technology, and Student Transition Services 133 Required Related Services 133 Counseling, Psychological, and Social Work Services 134 School Health, School Nurse, and Medical Services 135 Diagnostic and Evaluative Services 136 Physical, Occupational, and Speech Therapy 137