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The purpose of the law is to ensure a "free appropriate public education" to all children with disabilities in the "least restrictive environment."

In order to trigger the protections of IDEA, a child must have a disability that results in the need for special education and related services. Eligibility is determined when a child is referred by a teacher, school personnel or a parent for an evaluation.

The evaluation must assess all areas related to the child's suspected disability or disabilities, and may include a physical examination, psychological and psychiatric evaluation and testing, hearing or vision testing, and other appropriate evaluations. 

The goal of the evaluation is to determine whether or not the child has a disability that requires the provision of special education and related services. If a parent disagrees with the evaluation, they can request an independent educational evaluation (IEE). 

If the child is determined eligible, then an IEP meeting is scheduled. The IEP, or Individualized Education Program, is the guiding document for the special education and related services an eligible child will receive. At the meeting, the parents, together with several education professionals including a regular education teacher, special education teacher, a representative of the school, an individual who can interpret evaluation results, and others with specialized knowledge or expertise as necessary. The child with a disability may also participate in the IEP meeting. 

At the conclusion of the meeting, the IEP will be developed. It is required to contain the child's present levels of academic achievement and functional performance; the special education and related services that will be provided; supplementary aids and services that are needed; modifications and accommodations that will be provided. It includes extracurricular activities and nonacademic activities in addition to academic learning activities. A key component of the IEP is how much time the child will spend separated from his or her nondisabled peers. 

The IDEA requires that a child with a disability receive special education and related services in the least restrictive environment or LRE. The basic premise of LRE is that children with disabilities will be educated alongside children without disabilities to the maximum extent appropriate. It also requires that the child with a disability be educated in their home school, unless the IEP requires a different placement as the least restrictive environment for that child. 

It is important to remember the "individual" part of the Individualized Education Program, which means that a school can't place all children with disabilities in a separate, segregated classroom. The individual needs of each student must be assessed and a plan written and implemented to address those individual needs.

In order to effectively benefit from the special education and related services provided, a child with a disability may need modifications and accommodations. Some examples of modifications are changing the way a child is tested, i.e. giving an oral exam instead of a written one, or giving extra time to take an exam. Accommodations are things like augmentative communication devices, specialized computer software, Braille, sign language interpreters or captioning, allowing a service animal to accompany the child, etc.

If parents disagree with the placement decision, or the contents or implementation of the IEP, there are procedural safeguards in place. Parents can choose informal resolution like an IEP review, as well as the more formal procedures of mediation or a due process hearing. They can also file a state complaint. 

Mediation is a facilitated meeting between the parties where the mediator tries to help the parties reach an agreement. Mediation is voluntary and confidential. 

Parents can also file a due process hearing request. While each state's procedures vary, the basic requirements are that a due process complaint is filed, a resolution meeting is convened within 15 days, the hearing takes place and a decision is issued within 45 days. The hearing officer's decision is final; the only recourse is to appeal to the appropriate state or federal court. 

Parents may decide to file a complaint with the State Education Agency (SEA), which is required to investigate the complaint and issue a written decision within a certain time frame.

Though the IDEA is federal law, each state has its own set of regulations and procedures, so consult an attorney or advocate in your state for more information


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Rights of Primary and Secondary Students

One of the central laws that provides protection from discrimination of school-age children who have a disability is Section 504 of the Rehabilitation Act of 1973. This federal law applies to programs and activities that receive federal financial assistance. 

This law requires school districts to provide a free and appropriate public education to disabled students in the jurisdiction, regardless of the nature or severity of their disability. This includes provisions for regular or special education. It also applies to providing individual students’ educational needs by supplying aids and services that allow disabled students to have their needs fulfilled in the same manner as students without disabilities. 


504 Disabilities

In order for the 504 protects to be triggered, a student must have an impairment that substantially limits at least one major life activity, have a record of such an impairment or be regarded as having an impairment of that nature. An impairment that substantially limits a major life activity can include one that affects walking, seeing, speaking, eating, reading, concentrating, communicating, breathing, learning, working, hearing or grooming. Section 504 does not contain an exhaustive list of each major life activity or all impairments that can trigger its protections. 

Services for 504 Students

Students who have disabilities as defined under Section 504 are provided with a number of services and aids to help them have their educational needs met. This may include education in regular classrooms, education with supplementary services in the regular classroom and/or education in special education classrooms. 

Evaluations

Section 504 requires school districts to establish procedures to help them evaluate students who need these services. Such evaluation must occur before the classification of a student as one who has a disability. Tests and other evaluative efforts must be tailored to evaluate the areas of educational need for the individual student. 

Rights of Post-Secondary Students

Section 504 also concerns post-secondary programs that receive federal funds. Such colleges and universities cannot discriminate against students on the basis of disability. Instead, these entities must ensure that their programs are accessible to students with disabilities. 

Methods of Compliance

Colleges and universities can comply with accessibility requirements in a number of ways. One way is to provide architectural access to students. Buildings that were erected before June 3, 1977 do not have to be accessible if the school can ensure that students with disabilities can still enjoy the full range of programs offered by going to a separate, accessible building. However, if the building was constructed or altered after this date, the college or university must comply with accessibility requirements. In any event, programs and services must be provided in an integrated manner. 

If housing is provided to students, accessible housing must be provided to students with disabilities. Likewise, if transportation services are provided to students without disabilities, these services must be accessible by students with disabilities. 

Other Forms of Compliance

Colleges and universities also comply with accessibility requirements by providing aids and services to students that are necessary for effective communication. Another compliance measure is to modify practices, procedures and policies.

Example Academic Adjustments 

Colleges and universities that receive federal assistance must provide academic adjustments that ensure that disabled students have an equal opportunity to participate in classes, programs and extracurricular activities. Some examples of acceptable adjustments include giving students additional time to complete exams, course work or to graduate. Colleges and universities may also substitute nonessential courses for degree requirements.

Tape recording classes, adapting course instruction and modifying test-taking procedures are a few other ways that colleges and universities can make their programs accessible to students with disabilities. 

Colleges and universities must also provide auxiliary aids and services to students with disabilities. These aids and services include interpreters, notetakers, written materials, closed caption decoders, taped texts, large print and Brailled materials, audio recordings and modification of equipment.

Colleges or universities are not required to provide tutoring services for disabled students above what they provide for nondisabled students. Additionally, the college or university can choose in what manner auxiliary aids or services will be provided to disabled students as long as the manner is one which provides the student with equal opportunity. 

A college or university does not have to provide an academic adjustment or an auxiliary aid or service if doing so would “fundamentally alter the nature of the program” or when doing so would cause a significant difficulty or expense. 

Proving Disability

Colleges and universities can request that a disabled student provide documentation to prove that he or she has a disability. This may not be necessary if the disability is apparent. This step allows the college or university to establish the validity of a request for accommodations and to determine which accommodations are required.

Disclosures

Colleges and universities must inform students of the relevant nondiscrimination requirements under law. They must also adopt grievance procedures that provide students with due process and must have a coordinator who handles Section 504 compliance matters.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Many times, observers of bullying do not know what to do. Parents may try to step in or may advise their children to simply ignore the bullying. Unfortunately, such action may simply cause the bullying to escalate. Friends may be afraid to help because they do not want to become the new source of ridicule. 


Types of Bullying

Varying kinds of bullying exist and can haunt others. Physical abuse of another may result in bruises, cuts, scrapes, and even broken bones. When taken too far, one may take the life of another even if accidentally. Verbal mistreatment may have the most lasting effects upon a person. This type of cruelty tends to take certain characteristics one may be most vulnerable about and exploit them for the world to see as ridicule. Because this kind is usually not physical, it may have lasting effects that cause the person to doubt themselves and suffer from low self-esteem. It may even cause them to take their own life if this type of harm goes on for too long, or if it goes too far. Another form of bullying is indirect. This could be as little as spreading rumors, or it could be as vicious as causing someone else to directly threaten a person.

Protection

Due to the high number of suicides and negative effects of bullying, many schools have created programs to fight this nasty form or abuse. In fact, the law requires the implementation of such policies. In addition to the mandated policies, some schools have created clubs to band together and stop bullying in its tracks. Others have had conferences where teachers learn exactly what constitutes bullying and how to combat it.

 

State Laws

Laws regarding bullying vary from state to state. Some states have offenses related to threatening behavior that are activated if a child is threatened by another student. If the abuse took a sexual form, the criminal offense may be labeled as “Indecent Assault.” Assault charges may be filed if a student physically assaulted your child. 

State laws often contain very specific provisions and procedures that must be met and followed. For example, Arizona’s Protection from Harassment Act requires the perpetrator to commit multiple transgressions before the law will be triggered. Some states base damage claims on the legal theory of negligence if a student’s bodily harm or mental anguish can be substantiated through professional health confirmation. Some states have a statute of limitations of merely one year by which a legal claim must be filed.

Social Media

Many bullies in the 21st century are online bullies. Mobile devices, smart phones, tablets, laptops and a solid Internet connection make it easier for students to log on and post nasty comments about another student. Sometimes, a person uses chat rooms or emails to send a flurry of hateful messages. In other instances, the bully uses a fake profile or the anonymity of the Internet to say hurtful things to another student that he or she would not normally say if his or her identity was known. Historically, one of the difficulties of pursuing such cases against a school for not stopping the bullying was showing how the school was responsible for content outside of school hours. Another difficulty was that the conduct did not necessarily fit into a typical criminal statute. New legal theories have emerged to solve both problems. 

Education and Prevention

Schools need to explain to the students that bullying is not tolerated. Schools may attempt to curb bullying by having ongoing communication with students about school policies and criminal offenses that prohibit such conduct. Conferences and training can help inform staff and students about recognizing bullying, methods to prevent bullying and solving issues related to bullying. Legal recourse is available for those that experience these issues. Individuals who are being adversely affected by bullying may wish to discuss the issue with a lawyer who has experience in personal injury law and education law. Many lawyers will offer free consultations for students that have experienced offensive behavior and can provide an evaluation of the legal remedies that may be available.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Due Process Complaint
You have the right to file a due process complaint which will lead to a hearing before a designated officer. Similar to a courtroom proceeding, but less costly and more time efficient, the purpose of the hearing is to determine whether your child has had access to the correct educational opportunities.


You do not have to go before a hearing officer alone. Instead, we can represent you during the hearing and ensure that your case is presented fully and accurately.


Be Specific in the Complaint
We can assist you in preparing your specific complaint. It is critical that you are able to clearly articulate your complaint in the fullest detail possible, including what led you to this point. Everything you submit will be read by the hearing officer, and we will make certain that nothing is omitted.

Prepare for Your Hearing
Preparing for your hearing involves spending time investigating what happened and gathering the appropriate evidence to prove your case. We will need to convince the hearing officer both that your claim is valid and that your child did not receive his or her entitled educational benefits.


To prepare, we will need to perform all of the following steps:
Gather Evidence – Provide any written correspondence you have had with the school, teachers, or administrators. Documentation on test or placement scores, class descriptions, and more can all be used to build a strong case.
Speak with Expert Witnesses – Your child’s doctor, for example, could be an expert witness, testifying to the reason why your child needs to be part of a special education program.
Prove Harm – If you are going to seek reimbursements or compensation beyond having your child placed in the appropriate classes, we will need to gather evidence to prove harm or financial loss. This may include receipts for a private tutor, the cost of private school tuition you have paid, and anything else related.



Options Before the Hearing
Just because you file a complaint, it does not necessarily follow that you will end up before a hearing officer. Very often the school or school district will try to settle the case outside of a hearing. In this situation, we can pursue mediation where both parties are able to negotiate back and forth without a binding commitment until an agreement has been reached.

If both sides do not agree, the hearing will proceed as scheduled. Either way, we will represent and counsel you every step of the process.


Covering Expenses
If you win, the law allows you to collect financial compensation for the following items:
Reasonable attorney’s fees
Cost of private tutoring or educational expenses
In-kind contributions for future educational opportunities


You Have Two Years
It's critical that you file your claim immediately because there is a two-year statute of limitations on special education cases. If you do not file in a timely fashion, you may be unable to do so—or at least be unable to recover any form of reimbursement or compensation.

Protecting Your Child
An experienced special education attorney can work to ensure that your school district honors the “Stay Put” provision so that your child is not impacted during the dispute process. If your child’s educational rights are not being represented, contact an attorney experienced in family law and special education.



AUTHOR: Law Office of Laurence J. Brock

Copyright Law Office of Laurence J. Brock
More information about Law Office of Laurence J. Brock

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.