“What is your area of practice?” Attorneys ask one another this question within moments of meeting. Usual answers include business, family law, personal injury, criminal defense and immigration. The response, “special education” often elicits blank stares. Special education law occupies a niche that people discover when a need arises.
Special education law has existed in its current form since 1975, when Congress passed the law now called the Individuals with Disabilities Education Act (IDEA). The IDEA is a funding law that offers federal dollars to states in exchange for state compliance with an elaborate set of substantive and procedural requirements. All U.S. states and territories accept federal special education funding, and all have adopted regulations that conform to the IDEA.
A complete discussion of special education law would fill volumes. The following ABCs (and a D) illustrate in broad strokes some important features of special education law.
A is for Appropriate
The IDEA entitles students with disabilities to a free appropriate public education (FAPE). The words “free,” “public” and “education” require little explanation. The meaning of “appropriate” is a bit more elusive.
Special education must be appropriate as determined on a case-by-case basis for each student who has a disability. In order to achieve this standard, schools must conduct individualized assessments to determine eligibility for special education services and to identify the unique educational needs of each student with a disability. The assessment must yield enough information to develop an Individualized Educational Program (IEP). An IEP includes descriptions of a student’s present levels of performance, measurable annual goals that the student might be expected to achieve within one year, and details of the instruction, services, supports and accommodations the school will provide.
The IDEA does not include a definition of appropriate. The U.S. Supreme Court has twice attempted to corral this concept. In a 1982 decision, Hendrick Hudson Dist. Bd. of Ed. v. Rowley, the Court held that an IEP is appropriate if it is developed in accordance with IDEA procedural requirements and includes “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Two years ago, in Endrew F. v. Douglas County SD, the Court explained that educational benefit must be more the de minimus and held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” School personnel, families, attorneys, and courts have spent the past two years trying to understand how this standard of appropriateness applies in practice.
B is for Bureaucracy
The U.S. Department of Education (US DOE) monitors IDEA compliance in the states, and state departments of education bear responsibility for ensuring school district compliance. Washington’s Office of the Superintendent of Public Instruction (OSPI) develops and amends special education administrative rules, audits districts’ use of special education dollars, offers incentive grants, provides technical assistance and professional development, collects district special education data and wields the threat of penalties to school districts, including a possible loss of critical state and federal funding.
The focus of state regulation and monitoring is not the appropriateness of IEPs but rather the fidelity of IDEA procedural compliance. Satisfying OSPI demands a great deal of administrative attention in school districts but does not require as much assistance from in-house or retained counsel as student-specific issues do.
C is for Collaboration
IDEA regulations spell out detailed requirements for decision making relating to each individual student, including special education eligibility determination, individualized assessment of present levels of performance, IEP development, placement and exclusionary discipline. These processes require team collaboration, and the law specifies who serves on each team.
Parents are entitled to be members of every team that makes a decision about their child. The parental role is not superficial or passive; according to U.S. DOE, parents are “equal partners with the district.” Parents must have opportunities to contribute information, examine the district’s information, deliberate about relevant issues and ultimately have a voice in team decisions.
Exclusion of parents or limitations on their participation in special education decision making for their children constitutes a denial of FAPE.
D is for Disputes
Disagreements arise between parents and school regarding special education, especially about the appropriateness of an IEP. The IDEA offers three mechanisms for resolving disagreements:
- a citizens complaint to OSPI
- mediation
- an impartial due process hearing
Parents do not need legal counsel for the first two, although an attorney may be helpful in mediation. Parents can – but should not attempt to – represent their child’s interests in a due process hearing. The school district will always have legal counsel and will almost always prevail when parents are not represented by legal counsel.
Few Southwest Washington attorneys practice special education law, so finding legal assistance can be challenging. A list of special education attorneys is available on the OSPI website.
Diane Wiscarson and Mary-Anne Linden are attorneys with Wiscarson Law, the only firm in the Oregon and Southwest Washington with a primary emphasis on special education law for families. They can be reached at diane@wiscarsonlaw.com and mary-anne@wiscarsonlaw.com.
