Special education law by the Constitution

Historically, education in the United States has been under the jurisdiction of the individual states and local school districts. This philosophy has its roots in the Tenth Amendment to the U. S. Constitution, which states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. " Because education is not specifically mentioned in the Constitution, the power to operate schools has been reserved for the states.

This does not mean, however, that schools are not bound by the Constitution. Constitutional issues that affect schools include the First Amendment protections of free speech, the right to assemble, and religious issues. The Fourth Amendment protects against unreasonable search and seizure and carries with it an implied right to privacy. The Fourteenth Amendment includes the right to due process and equal protection under the law (U. S. Constitution). Each of these amendments has had a significant effect on education policy and on how schools are administered.

In the absence of federal laws pertaining to education, much of current education law has been shaped by court rulings. In the cases of school segregation and special education, court rulings proceeded and influenced laws that would eventually be passed by Congress. The Fourteenth Amendment, for example, was cited in the landmark anti-school segregation decision of Brown v. Board of Education. Although there was no specific federal law barring discrimination in schools, the Supreme Court ruled that the practice of school segregation was unconstitutional.

The Fourteenth Amendment was also cited in Mills v. Board of Education of the District of Columbia (1972) and in Pennsylvania Association for Retarded Children (PARC) v. Commonwealth, federal district court cases that involved the right of children with special education at no cost to the parents (Daugherty, 2001, p. 3). As in Brown had done nearly 20 years before, Mills  and PARC anticipated and contributed to federal education laws. 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.