Over the years special education has undergone tremendous changes in regards to the enactment of legal provisions that govern its operation in the United States. The demand has shifted away from the student’s level of disability as the key determinant of physical placement towards the urge of modifying the learning environments and teaching strategies in order to accommodate students of all capabilities in ideal learning environments.
As a matter of fact, the United States Presidential National Council on Disability claims that special education should be taken not as a ‘place’ but as but as ‘a service, available to every school.’ [National Disability Council, (1994)]
Legal Developments in Special Needs Education
Special needs education as it is today in the US, is as a result of the fruits borne out of civil rights campaigns. Before then it was characterized by rampant inequity in the handling of special needs education matters, sometimes even based on racial lines. [Mills v. Board of Education, 1972]
The efforts of advocates and other activists alike led to the enactment of the first national special needs education legislation, Education for all Handicapped Children Act (EAHCA) in 1975 which was renamed Individuals with Disabilities Education Act (IDEA) in 1990 (Public Law No. 101-476, 104 stat. 1142). However, the menace of inequity in special needs education particularly on minority groups has continued despite the legal provisions that call for equal treatment of all persons with disabilities.
In order to address the issue fully IDEA has undergone several amendments. For instance, in 1997 significant amendments were made: the definition of disabled children was expanded to incorporate developmentally delayed children falling between three and nine years of age. It also required parents to resolve disagreements with schools and Local Educational Agencies (LEAs) through mediation. Additional technological grants were also allocated for disabled infants and toddlers, parent training, and professional development.
The new version also stressed out the importance of instituting efforts to combat the escalation of problems related to wrongful labeling of individuals with disabilities and the high dropout rates among the minority children with disabilities. [Public Law No. 105-17, 111 Stat. 37] Again, in 2004 IDEA was once more amended and changed its name to Individuals With Disabilities Education Improvement Act (IDEIA).
This was necessary to align it with the provisions of the No Child Left Behind Act (NCLB) of 2001. Among other things the act authorized 15 states to implement a 3-year IEPs on a trial basis on condition that the parents agree to support it. The law also revised requirements on the evaluation of children with disabilities and made concrete provisions regarding the discipline special needs education. The law also provided for adequate/appropriate accommodation of learners with disabilities in schools by being assigned to small classes where specially trained teachers attend to their individual needs.
The law also requires the schools to facilitate additional services such as interpreters for the deaf or computer-assisted technology for the physically impaired. Again, the laws also provided for the interaction of the special needs students with the non-special education students in the regular classroom for a considerable time of the day. [Public Law No. 108-446, 118 Stat. 2647]
The Family Educational Rights and Privacy Act of 1974 (FERPA) is another legal provision that accords certain rights to students in regards to their education records. The law provides for the rights to inspect and review the education records, the authority to seek amendments of the records, and the right to have some control over the disclosure of information contained in those records. [FERPA (1974), 20 U.S.C. 1232g] It gives special needs students’ protection against biasness in the preparation of their educational records and disclosure of information contained in those records.
Disabled and Regular Learners in Public and Private Schools
Both the IDEA and NCLB provides for the federal funding of the public schools that partakes of accommodating learners with disabilities by providing Least Restrictive Environments (LRE). These funds are made available to all states that take part in the provision of minimum policies and procedures specified in the IDEA in regards to education of children with disabilities.
The funds are given to the schools on condition that they will develop an Individualized Educational program (IEP) for every student with a disability that fits the federal or states disability standards. The IEP must be made in a manner that provides the students with the necessary educational experiences that meets his or her needs. Further, the schools must provide Free Appropriate Public Education (FAPE) to each disabled student regardless of the severity of disability under no cost. To achieve this, the school districts rely on the IDEA funds.
This means that public schools in states or school districts that do not subscribe to the IDEA provisions for minimum policies are not eligible for the federal funds, however, all states have opted for the subscription to the requirements. Similarly, private schools may not be eligible to the federal funds making them to charge extra fees for children with disabilities a practice that is against IDEA provisions.
Students with disabilities who attend schools (public or private) that do not subscribe to the IDEA provisions cannot enjoy the legal privileges enjoyed by those attending IDEA-compliant schools since they may be forced to pay extra funds. Moreover, the signing into law of the No Child Left Behind Act (NCLB) of 2001 by President Bush provided funding for all public schools on condition that they administer state-wide standardized tests to all the learners. Under the law schools are required to post good results every end of the year (Adequate Yearly Progress- AYP) in order to continue enjoying the funding.
For those schools who do not meet the adequate yearly progress they are published in the local paper as ‘failing schools’ and the parents given the opportunity to transfer their children. If a school fails to meet the adequate yearly requirement for a second year, then they are required to provide specialized tutoring to their learners. If the problem persists for years then the schools are subject to reconstruction or even closure. [Public Law No. 107-110] Again, the NCLB is only applicable to public schools; therefore the law is only applicable to those learners (with disabilities or without) in public schools and not in private schools.
On the other hand it can be argued that there is no variance in regards to the education of the disabled learners against those who are not disabled whether in public, private schools or even care homes since the law provides that they should all enjoy the same educational ‘privileges’ where possible.
This argument is underscored by the IDEA clauses on the LRE whereby children with disabilities should be placed together in regular classrooms alongside other non-disabled learners with special classes or special environment created only in situations whereby the nature or severity of the disability hinders learning in regular classes even with the use of additional learning aids. The use of LRE on disabled children is similar to the non-disabled children environment which can enhance academic success for children with disabilities relative to the specific goals of a particular child’s IEP. [Daniel R. R. v. State Board of Education, 874 F. 2D 1036 (5th cir. 1989]
The Implementation and Monitoring of the IEPs
The implementation and monitoring of the IEPs is the duty of the school districts through the school teachers. It should be noted that the goal of IDEA is to educate children with disabilities with their non-disabled colleagues to the maximum extent possible. A child should only be placed in a separate environment (special classes) if the nature of the disability prevents the child from receiving education in the regular classroom even with the use of additional equipments and services. In such cases a child is assessed in all areas related the perceived disability.
The assessment of the learners in need of IEP is carried out by a collaboartive team that comprises of the learner’s parent(s) or guardian(s), a special education teacher, at least one regular education teacher, a representative of the school or district who possesses proper knowledge about the school resources that can be used to support the IEPs and lastly an individual who can draw inferences about the instructional needs of the learner’s evaluation results. In addition, the parent or school is allowed to bring another person who may possess a vast knowledge on special education matters.
The parent may also bring with them people/professionals who will assist them in discussing about the child with the rest of the team. To some extend the child can also participate in the EIP team meetings particularly if they are older enough (middle school). The composition of the EIP team may differ from state to state as some states have been known to include additional members, e.g. New York. The law recognizes the parents as equal members of the EIP team who should be fully updated about the progress made by the child and to also dispute or requests for some modifications. [Public Law No. 108-446, 118 Stat. 2647]
Need for Further Legal Refinement
The definition of a disabled child according to the law is too ambiguous: as it is no child is considered to be too disabled to be denied the IDEA educational services. Naturally some children are so severely disabled that they cannot be benefit from Free Appropriate Public Education. For example children who are permanently in vegetative status or even suffering from severe brain damage are considered eligible for FAPE. This makes unnecessary for such children to be ‘educated’ as in most cases they will not even learn the most obvious things such as their names.
This calls for amendment of the law to make it possible for such children to be ‘realistically discriminated.’ Moreover, from a legal point of view the IDEA has many grey areas which need to be addressed if its full effect is to be felt among the American disabled children. For instance, the law does address the issue of allocation of burden of persuasion regarding litigations filed by the parents, the school districts or the schools leaving courts with to make the decision in the event of a legal suit by any of the stakeholders.
The IDEA is also silent on whether funds meant for the IEP can be used to pay for court cases and administrative expenses or to educational activities only. Further, the law does not shed the light as to whether parents who sue schools pertaining to the administration of the IEP to their children should be refunded the expert costs they incur.
Many are times when the IDEA funds are used by school district for administrative purposes a practice which to some extent goes against the objectives of the law. Again, the validity of IEP has been an issue in contention among the stakeholders. For instance the law seems to disagree with notion that every IEP is invalid until the school districts proofs it to be valid. [Schaffer V. Weast (04-698) 546 U.S. 49 (2005); Arlington v. Murphy (N0. 05-18) 402 F. 3d 332 (2006)] The law does not cater for transition of disabled children from school to the outside world. Whereas the law plays a crucial role in the providing an appropriate education to the disabled children, it is shy of providing transition skills that will impart ideas about available or not available community resources, infrastructure, or policies.
The education of special needs students in the U.S. has evolved from the time when disabled children were considered a source of burden to a family. Today students with learning disabilities are given the same or even more attention as does the regular students, thanks to various laws prohibiting discrimination of any forms discrimination toward disabled people and more specifically laws that not only promote the education of disabled children but also promote their education alongside regular students. At the long run these laws have contributed in the ironing out of the perceived notions that disabled people are different from other non-disabled people in terms of carrying out educational instructions.
Arlington Central School District BD. Of Education v. Murphy (N0. 05-18) 402 F. 3d
332 (April 19, 2006)
Daniel R. R. v. State Board of Education, et al, 874 F. 2D 1036 (5th cir. 1989)
Family Educational Rights and Privacy Act (FERPA) (1974): 20 U.S.C. 1232g
Individuals with Disabilities Education Act (IDEA) (1990): Public Law No. 101-476, 104
Individuals with Disabilities Education Act (IDEA) (1997): Public Law No. 105-17, 111
Individuals With Disabilities Education Improvement Act (IDEIA), (2004): Public Law
No. 108-446, 118 Stat. 2647
Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (1972)
National Disability Council, (1994). Inclusionary education for students with
disabilities: keeping the promise. Washington, DC: Author.
No Child Left Behind Act (NCLB) (2001): Public Law No. 107-110
Schaffer V. Weast (04-698) 546 U.S. 49 (November 14, 2005) 377 F.3d 449