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Special Education – 504 v. IDEA

January 22nd, 2010 No comments

There are two basic federal laws that protect students, and make sure that they receive the services they need to be able to receive an appropriate education. The first is Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination against individuals with disabilities by requiring schools to provide reasonable accommodations that will allow a student with a disability to access the regular programs and services that are available to students without disabilities.

On the other hand, students who need specialized instruction and related services may qualify under the Individuals with Disabilities Education Act (IDEA). These students receive an Individualized Education Plan (IEP). Students who qualify under IDEA get many more procedural rights, but they must prove that they need specially designed instruction or related services in order to access the curriculum and make effective progress. Many students who qualify for an IEP have, what I refer to as, a processing problem. They are students who have problems learning or processing information by certain means. For example, the student may do very well when instructions and tests are in writing, but may not do as well with verbal instructions, or vice versa.

Although there has been much confusion as to which area of the law a student may fall under, if the issue has to do with scholastic issues, it is usually more beneficial for the child to access the benefits in IDEA.

At Epstein, Lipsey & Clifford we handle Special Education matters. Please call us at 781-829-9100 with any questions you may have. It costs nothing to talk to us.

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Education Law – Historical Perspective

December 22nd, 2009 No comments

Many of us, who went to school not that long ago, remember that being a special needs student meant riding to school in a separate bus and attending one class with other children of varying disabilities. These classes resembled more of a day care than school, and even the most advanced students had little hope of receiving a high school diploma, let alone attend college. Since that time, the term disability, and special needs student, has expanded to encompass much more than a person with an IQ below a certain arbitrary standard. The following is a little history of the evolution of the Individuals with Disabilities Education Act.

In 1954 the United States Supreme Court decided Brown v. Board of Education,
347 U.S. 483 (1954) which found that segregated schools were a violation of equal protection rights. It would be another twenty years before this concept was applied to children with handicaps, especially learning disabilities, trying to receive an education. In fact, shortly after Brown was decided the Illinois Supreme Court found that compulsory education did not apply to mentally impaired students, and as late as 1969, it was a crime to try to enroll a handicapped child in a public school if that child had ever been excluded.

Due to court challenges in Pennsylvania and the District of Columbia in the early 1970’s things started to change. In 1975 Congress enacted the Education for All Handicapped Children Act of 1975. This was the first law that mandated that all handicapped students had a right to an education. Not only did it mandate that all handicapped students had a right to an education, it also mandated that local educational agencies could be held accountable for not doing so. Shortly thereafter, the term handicapped was replaced with “child with a disability”. Although revised in 1990 as the Individuals with Disabilities Education Act (IDEA), the most comprehensive changes came in 1997. This law required schools to identify children with disabilities to make sure that all children have available a “free appropriate public education and related services designed to meet their unique needs and prepare them for employment and independent living” 20 U.S.C. § 1401 (d). Unfortunately, the most recent changes in 2004 made the law slightly more difficult to receive the benefits they deserve, which, depending upon the next administration and the make up of Congress may or may not be a trend that will be followed in the future.

Exactly what is a “free appropriate public education”? Under the law, it is defined as “special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge: (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [the law].” In other words, the school must provide services that meet the needs of a child with a disability that may affect their ability to learn. These “related services” can be services that are provided in the classroom, such as giving the child extra time to finish taking tests. They can also encompass services that can be provided outside of the classroom, such as tutoring, or having the child attend either a day or residential program outside of the school, along with transportation.

For the historical data, I relied on Wrightslaw: Special Education Law by Peter W. D. Wright and Pamela Darr Wright and Special Education Law in Massachusetts by Massachusetts Continuing Legal Education

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