Legal Aspects of Special Education

and Social Foundations

The American

Legal System

Chief Justice Earl Warren, Brown v. Board of Education (1954)

“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.”

Sean and Bobby

Points to consider Perspectives of parents Perspectives of administrators and teachers Perspectives of special education staff

Personal response Legal perspectives

The American Legal System

Laws based on constitutional principles Written and enacted by legislatures Interpreted by courts

Interaction of legislative and judicial systems that impacts special education law

The American Legal System

Federal system Union of states joined under central government Protects rights and liberties Shared authority and power with states Education not included in the constitution, but is

governed by the laws of the states Federal government involvement in education falls under

the “general welfare” clause Earliest involvement was in grants of land given to states

for public schools and colleges with no direct control Categorical grants - supplementary assistance - includes

Elementary and Secondary Education Act of 1965 and Education for All Handicapped Children Act of 1975

Sources of Law

Constitutional Law Supreme laws contained in federal and state constitutions

Statutory Law Law created by legislatures empowered by constitutions

Regulatory Law Regulations that implement the law by authority delegated

by legislatures to regulatory agencies Case Law

Published opinions of judges arising from court cases where they interpret statutes, regulations and constitutional provisions

US Constitution

Basic source of law Purpose:

Define rules Sets parameters for action Allocates power and responsibility among

branches of government Legislative - creates law Executive - enforces law Judicial - interprets law

US Constitution

Federal statutes based on provisions of the constitution

The provision that allows for money for “general welfare” is the basis of special education

Amendments (26) include Bill of Rights (1-10) and 14 (basis for special education) “No state can deny equal protection of the law to

any person within its jurisdiction” “Cannot be denied life, liberty, or property without

due process”

Statutory Law/Acts

Introduction of bill in congress Assigned a number If passes both senate and house,a committee is

formed Final version is sent to president who signs or

vetoes Enacted law is public law (P.L.) It is given a name and a number (# of congress -

“94” and number of bill - “142)

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Regulatory Law - Rules/Guidelines

Congress delegates power to administrative agencies Regulations have the force of law - a violation is the

same as a violation of the law Agencies regulate special education

Office of Special Education and Rehabilitation Services (OSER) and the Office of Special Education Programs (OSEP)

Office of Civil Rights (OCR) investigates violations

Case Law

Interpretations of statutes, regulations, and constitutional provisions by judges

Legal principles followed in later cases Long English tradition - common law consisting

of decisions from earlier cases Discipline of children with disabilities Extended school year

Special Education Law

Case law in the 70’s led to the provision of special education under the 14th amendment Mills v. Board of Education Pennsylvania Association of Retarded Citizens v.

Commonwealth of Pennsylvania Led to public law of 1975 (94-142)

Compulsory Attendance

Birthright Educated persons are important for democracy States passed compulsory education laws in late

1800’s through 1918 Exclusion despite above laws based on

differences 1958 - Department of Public Welfare v. Haas

continued exclusion 1969 - North Carolina claimed it was a crime to

force attendance of children with disabilities

Advocacy

Parental advocacy White House conference of 1910 Public school programming

Advocacy groups National A.R.C CEC TASH Specialized groups

Other Influences

Civil Rights Movement - Brown v. Board of Education Equal Opportunity cases Federal involvement

Education of the Handicapped Act of 1970 Section 504 of Rehabilitation Act of 1973 Education Amendments of 1974 The Education of All Handicapped Children Act of 1975 The Handicapped Children’s Protection Act of 1986 The Infants and Toddlers with Disabilities Act of 1986 The Individuals with Disabilities Act of 1990

Rehabilitation Act

Purpose Prevent discrimination against individuals with

disabilities Federally funded programs/agencies

Subpart D Preschool, elementary, and secondary schools No funds associated with implementation

For those who are not eligible through IDEA Non-categorical definition of disability

Disability Designation

Definition Has a disability Record of disability Thought of as having a disability Substantial limitation of a major life activities

Subjective decision-making process No norm-reference test data required Eligibility Determination Forms

Recent Federal Involvement

IDEA Amendments of 1997 No Child Left Behind Act of 2002 President’s Commission on Excellence in

Special Education Individuals with Disabilities Education

Improvement Act of 2004