Legal and Educational Issues

The lack of any formal national education policy has resulted in an education system that varies greatly from state to state. IDEA is one of the few federal laws that supercedes state laws pertaining to education. The other notable exception to state control over education policy is No Child Left Behind (NCLB), the federal education law that was enacted in 2001. Both of these laws represent an increase in federal control over education policy and a decrease in state and local autonomy in education.

In addition to IDEA, special education in the United States also subject to the provisions of Section 504 of the Rehabilitation Act of 1973. While IDEA is based on the philosophy that all children are entitled to FAPE regardless of their disabilities, Section 504 of the Rehabilitation Act of 1973 (hereafter referred to only as "Section 504") was broader in scope and was written to prevent discrimination against all people who have disabilities, not just students. NCLB applies to all schools and effects all students regardless of their disability and also has significant implications for Special Education.

IDEA defines a "child with a disability" as: "A child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and who, by reason thereof, needs special education and related services" (U. S. Congress, 2004, Sec. 602 [3][a][i]). Under IDEA, children who have a physical disability, learning disability, cognitive impairment, or certain other conditions are entitled to FAPE.

IDEA requires schools to develop an individual education program (IEP) for each student enrolled in special education which addresses the child's specific educational needs and outlines how those needs will be met. IDEA also includes procedural safeguards that are designed to ensure that parents have a role in planning the child's educational program, to offer a range of a continuum of educational services, to educate the child in the least restrictive environment, to treat the delivery of an appropriate education as an enforceable right, and to provide clear procedures for parents to resolve disputes with school districts.

Although IDEA addresses the needs of most students who have a disability, it does not include all students who have difficulties in the classroom. For example, students with attention deficit hyperactivity disorder (ADHD) do not automatically qualify for special education services under IDEA unless they have some other condition (such as a learning disability or cognitive impairment) that is included in the list of impairments covered by IDEA (Smith, 2001). Section 504 states that "No otherwise qualified individual with a disability…

shall solely by reason of her or his disability… be subjected to discrimination under any program or activity receiving Federal financial assistance" (Section 504, cited by Smith, 2001, p. 337). Some of the more visible results of Section 504 are handicapped accessible restrooms, ramps instead of stairs, and other accommodations for disabilities. Although Section 504 was designed primarily to eliminate discrimination in the workplace, it has also been used to gain accommodations for students in the public school setting.

The definition of a disability under Section 504 is not as specific as the definition used in IDEA. Section 504 applies to any child who "has a physical or mental impairment that substantially limits one or more of such person's major life activities, has a record of such an impairment, or is regarded as having such an impairment. " (Smith, 2001, p. 338). In the case of students, learning is considered a "major life activity. " Therefore, if the child has a physical or mental impairment that limits his or her ability to learn, then the child may qualify for special education services under Section 504.

Section 504 includes categories that are not specifically listed under IDEA, including "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities" (Smith, 2001, p. 338). Consequently, ADHD; unspecified learning disabilities, social maladjustment, substance abuse disorders, and other specific health needs that are not included under IDEA may be covered by Section 504 (Smith, 2001). NCLB is the most comprehensive federal education reform law to date.

Under the law,  students with disabilities are required to take standardized assessments of their academic progress. Schools and teachers will be evaluated, in part, on the test scores of their disabled students. Part of the challenge of NCLB is to find ways to reconcile a special education system that is based on the unique needs of the individual learner with a law that requires all children to meet the same academic standards (Elliott, 2003). As noted above, there are no provisions in the U. S. Constitution for federal control over education.

Congress, however, has found ways to circumvent this barrier to federal control over what the Framers of the Constitution believed should be within the domain of state and local governments. For IDEA, NCLB, and other education programs designed at the federal level, the federal government has used economic incentives as a way of forcing schools to comply. Similar economic incentives were used to ensure equal treatment of men's and women's sports programs under Title IX of the Education Act Amendments (Imber & Geel, 2004, p. 240). Schools that do not comply with the laws are at risk of losing their federal funding.