Special Education Rules

Education Rights Center

at Howard University School of Law

A Research Center Promoting Educational Equity for All Students

SPECIAL EDUCATION

INTRODUCTION

I. What is the Individuals with Disabilities Education Act?

II. The Initial Referral and Evaluation Process

III. Development of an Individualized Education Program

IV. Impartial Due Process Hearings

V. Additional Legal Protections for Disabled Students

VI. Disciplinary Procedures for Special Education Students

                                                        Introduction
            “Special education” in the United States is a term that generally describes the range of educational programs made available for children with mental, physical, emotional and behavioral disabilities. See Special Education, www.edweek.org.[1] The definition of special education does not focus on a single course of instruction but rather recognizes that a full range of varied educational opportunities may be necessary to enable disabled children to receive educational benefits.

The three primary federal laws that protect children with disabilities are the Individuals with Disabilities Education Act (“IDEA”), the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Of these laws, the IDEA is in many ways the most influential in defining the rights of disabled students and providing a roadmap of the educational services to which every disabled student is entitled. States have in turn enacted legislation that conforms to the requirements of the IDEA, providing substantive educational rights and procedural safeguards to disabled students and their parents.

Despite these legal protections, special education programs often still fall far short of providing the proper educational environment for disabled children. Rather than enabling disabled students to receive the educational services necessary for them to meet academic expectations, special education programs are too often used by schools as a disciplinary measure to channel so-called “problem” children out of the regular classroom and into a separate educational system that lacks the means to help children accomplish their educational goals. Notably, sixty-five percent of parents of disabled students polled in a 2002 Public Agenda survey felt that children who were identified as having behavioral problems, rather than disabilities, were being misdirected into special education. See Special Education, www.edweek.org.

A further indicator of this ongoing trend is the systematic overrepresentation of minority students who are tracked into special education programs. Minority students, particularly African-American and Native American students, are far more likely to be diagnosed as having a learning disability than white students. In most states, African-American children are 1.5 to 4 times more likely to be identified as mentally retarded or emotionally disturbed than white children. See The Civil Rights Project, “Racial Inequity in Special Education: Executive Summary for Federal Policy Makers.” Many scholars believe that these figures are indicative of widespread misdiagnosis resulting from both intentional and unintentional racial bias in the referral, testing and placement of minority students in special education.

This section is designed to assist individuals in understanding special education processes and procedures, as well as understanding their rights under the law. Of course, the systematic reform of certain special education programs and the overrepresentation of minority students in special education nationwide are ongoing problems that are admittedly far beyond the scope of this information. However, the discussion that follows is intended to help parents and advocates protect children from misdiagnosis and to ensure that no decision with regards to the provision of special education for a child is made without the full understanding, participation and consent of the parents.

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I. What is the Individuals with Disabilities Education Act?

The Individuals with Disabilities Education Act (“IDEA”) is found at 20 USC §§ 1401 et seq. and implementing regulations at 34 CFR §§300.1 et seq. The motivating philosophy behind the IDEA is the provision of a free appropriate public education ("FAPE") to all children with disabilities in the least restrictive environment ("LRE") possible. The IDEA statute was designed to fulfill this promise by carrying out the following principles:

Set high expectations for disabled children and provide them with sufficient academic and physical means to meet these expectations.
Provide disabled students with access to the same curriculum as non-disabled students, taught whenever possible in the regular classroom with non-disabled students.
Encourage family participation in the education of disabled children, including ongoing decisions concerning placement and the construction of an appropriate curriculum for each child.

In order to meet these goals, the IDEA statute sets forth particular requirements for locating, identifying, and evaluating children with disabilities, the components of a FAPE, procedures for designing special education instruction and related services, and due process procedures to secure a FAPE through administrative and judicial remedies. This section will accordingly address the initial referral and evaluation of children with disabilities and the creation of an individualized education plan for each disabled child.

A. When does a child need or not need special education services?

A key issue in the IDEA and special education process is the initial identification of a child with a disability. Parents must be aware and assertive on behalf of their children throughout the special education process, starting with this initial identification phase. When meeting with school officials and when considering a child’s education status, the parent must always remember one thing: no matter how well intentioned or professional the school official, the child is not their first priority, which means the parent must be the child’s sole advocate and must be willing to zealously represent their child. This could mean requesting an evaluation process or objecting to a change to a child's identification status and eligibility for special education services.

If parents suspect that their child may have a disability, a written request for an evaluation to determine whether the child is eligible for special education services may be made to the principal at their school, the special education department of their school district or to the state department of education’s special education office.

School officials may also initiate a referral of a student for a special education eligibility evaluation, but school-initiated referrals must adhere to strict procedural requirements that require parental notification, participation and consent.

PARENT CONSENT IS REQUIRED FOR

AN INITIAL EVALUATION

A child cannot be evaluated for special education services without the parent’s written consent.
If a school official believes a special education referral is necessary for a child, the following procedures must be followed:
- The special education referral must include specific documentation of the appropriate efforts that have been made to educate the student in the regular education program.
- The parent must receive a Prior Written Notice explaining in detail what action is proposed, how the decision to make the referral was made, what documentation was relied on in reaching the decision, what other options were considered, and why other options were rejected. 20 U.S.C. § 1415(b)(3), (c).
- Parents must receive a Procedural Safeguards Notice fully explaining parental rights and those of the child along with the procedures that will be used to ensure that those rights are protected throughout the special education process. 20 U.S.C. § 1415(d)(1)(A).
- Schools must obtain written consent by the parent for the evaluation of a child for special education services. This consent must be voluntary and may be revoked by the parent at any time. 20 U.S.C. § 1414(a)(1)(C)(i).
If parents refuse to consent to a special education eligibility evaluation, the school may nevertheless continue to seek an evaluation either through mediation or by initiating a due process hearing, discussed below. 20 U.S.C. § 1414(a)(1)(C)(ii).

B. Who conducts the initial evaluation?

Once parents have requested an evaluation of their child through a special education referral or have otherwise consented to a special education referral initiated by the school, a multidisciplinary evaluation team (“MET”) will be assembled to conduct the evaluation. The MET may include the following individuals:

The parent(s)
At least one of the child's regular education teachers
A special education teacher
The chief administrative official of the school district or county or the person officially designated responsible for public education
A representative of the public agency that is qualified to provide or supervise the provision of special education who is knowledgeable about the general curriculum and the availability of resources
A person who can interpret the instructional implications of evaluation results
The child, if appropriate
Any other person with knowledge or special expertise about the child

The parent(s)

Parents should strive not to be intimidated by all of these “professionals.” By requiring parental consent to an evaluation and encouraging parent participation in the process, the IDEA recognizes that parents, not “experts,” know their children best. Because parents' own observations of their child in the home and outside of school are highly relevant to any disability evaluation, parents should not be afraid to challenge the assumptions and opinions of any other member of the MET. See Glannon, Theresa, “Race, Education, and the Construction of a Disabled Class,” 1995 Wis. L. Rev. 1237, 1325-26.

Furthermore, parents should consider taking full advantage of the ability to include their child and other persons with knowledge or special expertise about the child in any evaluation. The perspective of other adults familiar with the child, such as relatives, teachers and community leaders may be very helpful in providing additional insights in the evaluation process and may also help reduce the intimidation factor that might be posed by a group of administrators and professionals. Parents should think carefully about whether the presence of their child during the evaluation would help or harm any determination of their child's need for special education services.

C. What are the criteria for a special education eligibility determination?

In order to be eligible for special education and related services, a ‘child with a disability’ must be between three and twenty-one years old and possess at least one disability, as defined by state laws. In Arizona, for instance, those disabilities include:

Autism
Emotional disability
Hearing impairment
Other health impairments
Specific learning disability
Mild, moderate or severe mental retardation
Multiple disabilities
Multiple disabilities with severe sensory impairment
Orthopedic impairment
Preschool moderate or severe delay
Preschool speech/language delay
Speech language impairment
Traumatic brain injury
Visual impairment

A.R.S. § 15-761(2).

Parents should be cautious in considering any finding that indicates their child has any of these disabilities, particularly any finding indicating a category of disability that is more subjective in nature, such as “emotional disability,” “mild” or “moderate” mental retardation and “preschool moderate delay.” The fact that disproportionate numbers of minorities, particularly African American children, are consistently deemed to be disabled under these vague and subjective categories of disabilities suggests that widespread misdiagnosis of minorities is occurring for reasons other than simple error. For example, a study conducted by the U.S. Department of Education found that African American students in at least thirteen states, including Arizona, are at least three times more likely than white students to be identified as having mild mental retardation. See Glannon, 1995 Wis. L. Rev. at 1253. Nationwide, African Americans are more likely to be deemed mentally retarded, seriously emotionally disturbed, or to have a specific learning disability than any other racial group. See Pamela Smith, “Our Children's Burden: the Many-Headed Hydra of the Educational Disenfranchisement of Black Children,” 42 How. L.J. 133, 190 (1999).

Commentators have suggested that teacher and administrator subjectivity overly-influences many special education decisions, starting with the initial special education referral and testing. Key decisions such as whom to test, what test to use, and when to exercise discretion in interpreting and weighing test results are often dominated by factors such as poor teacher training, beliefs of African American and Latino inferiority, low expectations for minorities, cultural insensitivity, fear and misunderstanding of African American males, and overcrowded schools. See Daniel J. Losen and Kevin G. Welner, “Disabling Discrimination in Our Public Schools” 36 Harv. C.R.-C.L. L. Rev. 407, 419-22 (2001). The fact that certain categories of disabilities such as ‘emotional disability’ are overly broad and vague by definition makes it easy for teachers and school administrators to use them as a means to remove those students from the classroom whom they are unable or unwilling to teach. Therefore, parents should be wary of accepting without question any "expert" determination or test indication that their child has a disability. These results and the MET’s ultimate special education eligibility decision may be challenged by parents through a variety of means discussed below.

D. How is the special education eligibility determination made?

The actual evaluation process requires a review by the MET of all existing information about the child, including current evaluations, information provided by the parents, educational history, and all other relevant documentation. If further tests are needed, these may be conducted with parental consent. Any tests or other evaluation materials used to assess the child must be selected and administered so as not to be racially or culturally discriminatory. 20 U.S.C. § 1414(b)(3)(A).

The MET must ultimately make its special education eligibility determination on the basis of its review and evaluation of all relevant information. In reaching a decision to recommend special education placement, the MET must decide three key questions:

Does the child have one or more of the aforementioned disabilities?
What is the child's present level of performance and education needs?

Does the child need special education in order to enable him or her to meet educational goals?

See 34 CFR § 300.533. Once a decision is made with respect to the child's eligibility for special education, the MET must prepare an evaluation report that summarizes and explains its findings. Parents must be provided with a copy of the report and also a Prior Written Notice explaining in detail what action is proposed, how the decision was made, what documentation was relied on in supporting the decision, what other options were considered and why other options were rejected. 20 U.S.C. § 1415(b)(3), (c).

E. Can a special education eligibility determination be reviewed?

The IDEA requires that a child with a disability must be reevaluated at least once every three years to determine whether the child still needs special education or related services. The procedural notice and consent requirements described above in connection with an initial evaluation also apply to any reevaluation. The law also provides that a reevaluation shall be conducted upon the request of a parent or a teacher, so parents who believe that their child no longer requires special education or who believe that their child's needs have changed should request a reevaluation from their local or state department of education. 20 U.S.C. § 1414(a)(2).

F. Can I protest or appeal a special education eligibility determination?

If a parent disagrees with the results of any evaluation performed or obtained by the school or otherwise feels that their child was improperly tested or referred for special education, there are a number of actions a parent may take. These include seeking an Independent Educational Evaluation, engaging in mediation, filing a state complaint, and seeking an impartial due process hearing. The due process hearing is discussed in greater detail in a separate section below.

Independent Educational Evaluation: If parents disagree with an evaluation conducted by the local school district, they have the right to obtain an Independent Educational Evaluation ("IEE") of their child, which may be paid for at public expense. 34 CFR § 300.502(b). An IEE is a separate evaluation of a child's eligibility for special education services carried out by qualified persons not employed by the school district. If an independent educational evaluation of the child is requested by the parent, the public agency must, without reasonable delay, either initiate a due process hearing under 34 CFR § 300.507 (discussed later) or ensure that the evaluation is provided at public expense 34 CFR § 300.502(b)(2). More information concerning how to request and arrange for an IEE is available by contacting the special education division of the state or local department of education.

Mediation: Mediation is a non-binding, voluntary proceeding in which parents and school district representatives may meet with an unbiased third party who will assist in resolving a dispute concerning a child's special education evaluation, placement or program. The costs for mediation are paid for by the state. 20 USC § 1415(e); 34 CFR § 300.506. More information concerning how to request and arrange for mediation is available by contacting the special education division of the state or local department of education.

Filing a State Complaint: If a parent believes that the school district or the state department of education has failed or is failing to comply with any federal or state education laws or regulations, they may send a written and signed complaint stating the facts relating to any alleged violation to the Dispute Resolution Coordinator at the special education division of the state or local department of education.

State complaints generally must be filed within one year of the alleged violation.

Once a determination has been made that a student is eligible for special education services, the school system will arrange for an Individualized Education Program (“IEP”) meeting to determine the design of the special education and related services program and establish any accommodations and modifications for the student. The IEP Team should consist of the same group of individuals who comprised the MET, although the chief administrator of the school district or county need not be present. The IEP Team's goal is to agree upon and draft a written IEP for the disabled student that sets forth the following information:

The student's present level of educational performance

Measurable annual goals and short-term objectives for evaluating progress toward those goals

Specific special education and related services to be provided to enable the student to meet the established performance goals

A. What is the parents’ role in the development of an IEP?

The IEP is designed as a consensus and collective decision-making process, and parents are an essential part of this process. The law does not define how decisions are made, so parents must make clear what they want for their child and why they want that particular accommodation. Questions to ask include who, what, where, and why as to the proposed evaluations, services, and placement. Parents should make sure the meeting is scheduled at a time that is most convenient to them. Importantly, parents do NOT have to agree to each particular goal until the end of the IEP development process. Parents should accordingly reserve the right to review the IEP as a whole and then offer their consent or rejection. See Ralph M. Gerstein and Lois Gerstein, Education Law: an Essential Guide for Attorneys, Teachers, Administrators, Parents and Students § 4.5(C).

When constructing an IEP, the IEP team should be guided by the IDEA statute's mandate that children with disabilities must be provided a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) possible. The IDEA's LRE provision requires that, to the maximum extent appropriate, children with disabilities must be educated in mainstream classes with children who are not disabled. Removal of disabled children from the regular educational environment is only allowed when the child's educational goals cannot be achieved in the regular classroom with the use of supplementary aids or services. 20 U.S.C. § 1412(a)(5)(A).

Because of these concerns, parents should be cautious when considering any recommendation or suggestion that their children receive any portion of their education outside of the regular classroom or apart from their non-disabled peers. Parents of minority children who are disabled should be especially wary of the possibility that some teachers or school administrators may be biased toward recommending separate education simply to remove from their classrooms certain students about whom they feel uncomfortable. See Glannon, 1995 Wis. L. Rev. at 1318-19. The potentially harmful stigmatizing effect of being classified as a disabled student is only further magnified by the physical segregation of disabled students from the regular classroom. Gerstein and Gerstein, § 4.7(B). In this area, minority special education students in particular are more likely than white special education students to be placed in a separate education facility where the hardships they experience as disabled students are compounded by their minority status. See Losen, “Disabling Discrimination in Our Public Schools” at 427. Parents should therefore take every opportunity to ensure that their child's IEP is designed to be implemented in the regular classroom as much as possible.

B. What is the parents' role in the final approval and implementation of the IEP?

Parental consent is required for initial special education placement prior to the implementation of the IEP.

Prior to the development of the IEP, the following procedures must be observed:
- You must receive a Meeting Notice from the school notifying you of and inviting you to the IEP team meeting.
- You must receive a Procedural Safeguards Notice from the school district or state department of education fully explaining your rights and those of your child along with the procedures that will be used to ensure that those rights are protected throughout the special education process. 20 U.S.C. § 1415(d)(1)(A).
After the development of the IEP and prior to the initial placement and implementation of the IEP, the following procedures must observed:
- You must receive a Prior Written Notice that includes a copy of the IEP and explains in detail what action is proposed, how the IEP was developed, what documentation was relied on in reaching the decision, what other options were considered and why other options were rejected. 20 U.S.C. § 1415(b)(3), (c).
- You must provide written consent to your child's initial special education placement. This consent must be voluntary, and may be revoked by you at any time. 20 U.S.C. § 1414(a)(1)(C)(i).

Once the IEP has been implemented, parents must receive regular progress reports detailing their child's progress in the general curriculum and in meeting the goals established in the initial IEP. These progress reports must be provided to the parents of special education students as least as often as progress reports are provided to the parents of students not in special education. See, e.g., A.R.S. § 15-767. Furthermore, regular review and revision of the IEP must take place annually and must be accompanied by the same procedural notifications and consent protections required for the initial approval and implementation of the IEP. 20 U.S.C. § 1414(d)(4).

C. Can I protest or appeal the development or implementation of an IEP?

The same mediation, state complaint and due process hearing protections available for challenging a special education eligibility determination are also available for the appeal of decisions concerning the educational placement and provision of a FAPE for your child.

IV. Challenging Special Education Decisions through Impartial Due Process Hearings

An impartial due process hearing is the most important means by which a parent may initially challenge any decision made under the IDEA statute. The due process hearing is an opportunity for parents and school personnel to meet before an impartial individual to present their arguments and positions concerning the identification, evaluation, placement, or provision of a FAPE for a disabled student. 33 C.F.R. § 300.507. The following paragraphs provide a brief summary of how parents may initiate a due process hearing in Arizona, what to expect at a due process hearing, and how to appeal an unsatisfactory hearing outcome, if necessary.

A. How do I initiate a due process hearing?

In order to initiate a due process hearing regarding a child’s identification, evaluation, placement, or provision of a FAPE, a parent must make a written request to the chief administrator of their child’s school. Parents should include the following information in their written request:

Child’s name and address

Name of school or program child is attending

Description of the dispute and facts relating to the problem

Parents’ proposed resolution of the problem, to the extent possible

An Impartial Due Process Hearing Officer (the “Hearing Officer”) will be appointed to hear the case at the state's expense. Once this process has begun, parents may wish to contact the special education division of the state or local department of education for further information on how to obtain free or low-cost legal services for advice and help in preparing for the due process hearing.

B. What is the timetable and schedule for a due process hearing?

Once a Hearing Officer has been appointed, he or she will contact the parties in writing to confirm the appointment and schedule a pre-hearing conference. At the pre-hearing conference, the Hearing Officer will specify the matters to be decided at the hearing, establish the procedures to be used at the hearing, and set the time and dates for the hearing.

The due process hearing itself must be conducted and a copy of the decision delivered to both parties no later than 45 calendar days from the date the written request for the hearing was received, although the Hearing Officer may grant an extension of time following the request of either party. 34 CFR § 300.511.

C. What occurs at the due process hearing?

The due process hearing will follow the procedures and schedule set forth by the Hearing Officer at the pre-hearing conference. Generally, parents should expect the following events to occur at the hearing

1) Introductory remarks from the Hearing Officer reviewing the procedures to be followed and the rights of the parties

2) Presentation of evidence and testimony by the school district or agency and its witnesses

3) Presentation of evidence and testimony by the parents or parents'

representative and their witnesses

4) Brief summary statement (if any) by the school district or agency

5) Brief summary statement (if any) by the parents

6) Concluding remarks from the Hearing Officer reviewing the due process and procedural safeguards that were followed during the hearing, providing an overview of what will happen next and describing the procedures to be followed for any appeal following the hearing

D. What rights do parents have at the due process hearing?

Parents may assert the following rights at the due process hearing.

the right to counsel and assistance from individuals with special training or knowledge in special education
the right to examine/cross-examine witnesses
the right to require production of witnesses by subpoena
the right to obtain and examine educational records of the child
the right to a written or electronic record of such hearing
the right to a written decision by the hearing officer

See 20 USC § 1415(h); 34 CFR § 300.509.

E. Can I protest or appeal the decision made by the Hearing Officer?

Both the parents and the school district or agency can appeal the due process hearing decision. In some states, appeals must first be made to an Administrative Review Officer. However, parents can always ultimately appeal to state or federal court.

Administrative Review

Any appeal for an administrative review must be made by written request to the special education division of the state or local department of education within a specified period (35 calendar days in Arizona) after receiving the Hearing Officer's written decision. An Administrative Law Judge appointed to serve as the Administrative Review Officer will review the entire record of the due process hearing to insure that the proper procedures were followed, then take additional evidence if necessary and will make an independent decision following the review. In general, the Administrative Review Officer must reach a decision and provide a written or electronic copy of the decision to the parties within 30 days after receiving the request for an appeal.

Civil Actions

Parents also have the right to further appeal an adverse administrative review decision to federal district court or any state court. 20 USC § 1415(i)(2); 34 CFR § 300.512(a). It is strongly recommended that parents consult with legal counsel for advice and assistance regarding the filing of a lawsuit. Additional assistance in finding legal help and advice can been found under the public information section of the American Bar Association website, www.abanet.org or under one’s respective state bar association website.

F. What remedies are available to the parent in this process?

Parents may be able to seek some limited compensation or reimbursement if they ultimately choose to pursue any of the administrative or legal proceedings described in this section. However, additional money damages are generally not available for any administrative or legal actions brought by parents to enforce their children's rights under the IDEA statute. Some available remedies that are allowed include:

1. Tuition reimbursement for private services.

2. Compensatory Education (remedy for children who were eligible for special education and related services but who were denied those services).

3. Attorney’s fees (available to parents who are the prevailing party in either an administrative proceeding or judicial proceeding).

V. Additional Legal Protections for Disabled Students

A. Section 504 of the Rehabilitation Act prohibits discrimination against children with disabilities

Another law that protects students with disabilities is Section 504 of the Rehabilitation Act of 1973 (“Section 504”). The IDEA and Section 504 create parallel, yet, distinct remedies when state and local agencies fail to provide a child with a free appropriate public education. The primary difference is that IDEA provides “entitlements” for children who are eligible for special education and related services as discussed above, and Section 504 is an anti-discrimination statute that “protects” against discrimination toward children with disabilities. “Discrimination” based on disability under Section 504 occurs when an individual is excluded from participation in or is denied the benefits of any program or activity receiving federal financial assistance. Section 504 applies to all preschool, elementary, and secondary education programs that receive federal financial assistance. See 29 U.S.C.A. § 794(a).

B. Has my child suffered discrimination due to their disability?

The Section 504 definition of “disabilities” is broader than the IDEA definition and includes all individuals who have: “physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.” Students with disabilities cannot be denied participation in or be denied benefits from services which are afforded to non-disabled students. The student must be “otherwise qualified,” which means that the student must be: 1) of an age during which non-disabled students are provided such services; or 2) be of an age which it is mandatory under state law to provide special education to eligible children (between ages 3-21 in Arizona); or 3) be someone who must be provided with special education under the IDEA.

C. What is a Free Appropriate Education under Section 504?

Section 504 requires that school systems provide equal access to educational programs and activities. For example, a school may be required to provide large print evaluations for visually impaired students in their instructional program when the evaluations are a requirement for the program. Section 504 requires that school systems provide modifications to curriculum and testing and accommodations for an individual with a disability.

The provision of regular or special education services that are designed to meet the individual educational needs of the individual with disabilities as adequately as the needs of non-disabled individuals are met and are based on adherence to procedures that satisfy the requirements of the Section 504 regulations. Like the IDEA statute, Section 504 requires that any school receiving federal financial assistance place children with disabilities in the regular educational environment unless the school can demonstrate that the education of the child in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. When separate programs, facilities, or activities are provided for children with disabilities, they must be comparable to those provided to non-disabled students. Arizona’s policy is to maintain the student in a regular education setting to the greatest extent possible, which is a policy consistent with that of both Section 504 and the IDEA statute.

Section 504 also provides for procedural safeguards and due process. As with the IDEA, school systems must provide notice before taking any action with respect to special education identification, evaluation or placement. The school systems must provide a full and individualized evaluation for each child being considered for special education and related services and must provide the parent with an opportunity to examine relevant records maintained by the school regarding the child. If requested by the school or the parent, then the school systems must provide for an impartial hearing as well as a review process where the parents and child may be represented by counsel.

D. How can I report discrimination against my child under Section 504?

Each local school district is charged with establishing an informal grievance procedure overseen by a Section 504 Coordinator to advise parents of their rights in order to resolve grievances and disputes arising under Section 504. Parents should contact the special education division of the state or local department of education for additional information regarding the grievance procedure.

Parents can also file a complaint with the U.S. Department of Education Office for Civil Rights (the “OCR”), which is responsible for administrative enforcement of federal laws prohibiting discrimination on the basis of race, color, national origin, sex, and disability. This complaint must be filed within 180 calendar days of the alleged discriminatory act. Parents may contact the regional OCR enforcement offices to file a complaint and may also obtain a copy of the complaint form online. The local regional offices of OCR can be found at: http://www.ed.gov/about/offices/list/ocr/index.html

E. Americans with Disabilities Act

Finally, the Americans with Disabilities Act (“ADA”) extends the prohibition against disability discrimination to those educational institutions that do not receive federal financial assistance and would therefore not be subject to the prohibitions and requirements of Section 504. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participating in or be denied the benefits of the services, programs, or activities of a public entity." A “public entity” is defined as any State or local government and any department, agency, special purpose district, or other instrumentality of a State or local government. Furthermore, private schools are covered under Title III of the ADA which bars disability discrimination based on the denial of benefits, services, programs, or activities of public accommodations including nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.

The ADA is modeled after Section 504 and the elements of claims under these statutes are nearly identical. Furthermore, the remedies, procedures, and rights under Title II are the same as under Section 504.

Several studies have found that students with disabilities are consistently more likely on average to be suspended and to receive discipline more frequently than non-disabled students. See Pauken, 139 Ed. Law Rep. at 770-72. Disabled students, who already often suffer discrimination from their peers and school officials due to their disabilities, run the risk of being even further marginalized by being excluded from school or placed in alternative education as a result of disciplinary sanctions mandating suspension or expulsion. To the extent that a behavioral problem may stem from the student's disability, students should not be punished for something beyond their control. Parents should be aware that in certain circumstances, the IDEA statute provides for additional procedural protections for students with disabilities who may be subject to discipline, particularly when the behavior prompting disciplinary action is related to the student’s disability.

A. Suspensions for less than 10 days are not entitled to additional protection

If a student with disabilities is suspended for less than ten school days, no special rules apply; disabled students in these circumstances are subject to the same rules that apply to non-disabled students. Moreover, schools are not required to provide any educational services to disabled students during these suspensions beyond those provided to non-disabled students.

B. Suspensions for more than 10 days trigger additional protection

Suspensions of more than 10 days require schools to provide instruction sufficient to enable the student to appropriately progress toward his or her IEP goals and progress in the general curriculum for the duration of the suspension. Furthermore, if a school suspends a disabled student for a time period exceeding ten consecutive school days or if a school suspends a disabled student for a cumulative time period of more than ten days in a single school year, such action constitutes a “change in placement” under the IDEA statute. This “change in placement” in turn triggers two special procedural protections: a Functional Behavioral Assessment and a Manifestation Determination Review.

FUNCTIONAL BEHAVIORAL ASSESSMENT

The purpose of a Functional Behavioral Assessment is to determine how to develop or modify the IEP of a disabled student so as to address the behavior that resulted in the imposition of disciplinary measures.
Functional Behavioral Assessments must be carried out within ten days of any "change in placement".
Functional Behavioral Assessments are substantially similar to an IEP meeting (as described above).
Prior to the Functional Behavioral Assessment, the following procedures must be observed:
- You must receive a Prior Written Notice from the Arizona Department of Education explaining in detail what action is proposed, how the decision to make the referral was made, what documentation was relied on in reaching the decision, what other options were considered and why other options were rejected. 20 U.S.C. § 1415(b)(3), (c).
- You must receive a Meeting notifying you of and inviting you to the Functional Behavioral Assessment.
- You must receive a Procedural Safeguards Notice fully explaining your rights and those of your child along with the procedures that will be used to ensure that those rights are protected throughout the special education process. 20 U.S.C. § 1415(d)(1)(A).
At the Functional Behavioral Assessment meeting, the IEP Team will either develop an IEP for the student or review and modify the student's existing IEP to address the behavior that prompted the imposition of disciplinary measures. 20 U.S.C. § 1415(k)(1)(B).

The Manifestation Determination Review can and often will be carried out in conjunction with the Functional Behavioral Assessment.

MANIFESTATION DETERMINATION REVIEW

The purpose of a Manifestation Determination Review is to determine whether the behavior that prompted the imposition of disciplinary measures is related to the student's disability.
Manifestation Determination Reviews must be carried out within ten days of any “change in placement.”
Prior to the Manifestation Determination Review, the following procedures must be observed:
- You must receive a Prior Written Notice explaining in detail what action is proposed, how the decision to make the referral was made, what documentation was relied on in reaching the decision, what other options were considered and why other options were rejected. 20 U.S.C. § 1415(b)(3), (c).
- You must receive a Meeting Notice notifying you of and inviting you to the Manifestation Determination Review.
- You must receive a Procedural Safeguards Notice fully explaining your rights and those of your child along with the procedures that will be used to ensure that those rights are protected throughout the special education process. 20 U.S.C. § 1415(d)(1)(A).
At the Manifestation Determination Review meeting, the IEP Team will review all relevant information and will make one of two determinations. If the IEP Team concludes the student's behavior is related to his or her disability, the student must be readmitted to school immediately and the student's IEP should be adjusted in accordance with the recommendations resulting from the Functional Behavioral Assessment.
If the IEP Team concludes that the student's behavior is not related to his or her disability, the student will be subject to the same disciplinary measures applied to non-disabled students. 20 U.S.C. § 1415(k)(5)(A). Parents should be aware, however, that this conclusion may only be reached if the IEP Team makes the following determinations:
- The student's previous IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the student's IEP and placement;
- The student's disability did not impair the student's ability to understand the impact and consequences of his or her behavior; and
- The student's disability did not impair the student's ability to control his or her behavior. 20 U.S.C. § 1415(k)(4)(C).
If parents disagree with the conclusions made at the Manifestation Determination Review, they may request a due process hearing and subsequent administrative and legal appeals (as discussed in the Impartial Due Process Hearing section above). 20 U.S.C. § 1415(k)(6).

C. Suspensions requiring placement in alternative educational settings

The suspensions described above should ordinarily result in no alteration to a disabled child's usual educational placement. However, in certain circumstances, placement in an interim alternative educational setting pending the resolution of hearings, reviews and other procedures may be justified. An interim placement of up to 45 days can be made under the following circumstances:

The student carries or possesses a weapon to or at school, on school premises, or at a school function. 20 U.S.C. § 1415(k)(1)(A)(ii)(I).

The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function. 20 U.S.C. § 1415(k)(1)(A)(ii)(II).

A hearing officer determines that substantial evidence shows that the student's current placement is substantially likely to result in injury to the child or others. When making such a determination, the hearing officer must also consider the appropriateness of the student's current placement, whether the school has made reasonable efforts to minimize the risk of harm in the student's current placement and must further determine if the proposed alternative setting will enable the student to appropriately progress toward his or her IEP goals and progress in the general curriculum. 20 U.S.C. § 1415(k)(2).

This interim alternative placement is also considered to be a “change in placement,” thereby requiring that a Functional Behavioral Assessment and a Manifestation Determination Review be carried out before any interim placement can be made. In the meantime, students must remain in their then-current educational placement pending outcome of these proceedings. 20 U.S.C. § 1415(j). In the event that parents wish to appeal any conclusion regarding alternative education placement, the same due process protections discussed above apply in this area as well.

Parents should consider carefully the ramifications of any amount of time their child may spend being educated outside the ordinary classroom with other non-disabled students. The imposition of disciplinary measures, even when justified, should not overshadow the IDEA's overarching goal that special education be accomplished in the mainstream educational environment whenever possible. Parents should remain aware of common biases against both minorities and the disabled that may affect placement and suspension decisions and should not hesitate to avail themselves of the procedural protections available to them through due process hearings and subsequent administrative and legal appeals if they suspect wrongdoing.

D. Are these disciplinary protections available to students who have not previously been identified as
being in need of special education?

School districts are required to provide the same procedural protections to disabled students who have not yet been identified as those provided to disabled students that have been previously identified, as long as those school districts have “knowledge” of the student's potential disability. The school is considered to have such knowledge if:

The student’s parents have previously expressed a concern in writing that their child may require special education and related services;

The student’s behavior or performance demonstrates the need for such services;

The student’s parents have previously requested an evaluation to determine their child's eligibility for special education and related services;

The student's teacher has previously expressed concern about the behavior or performance of the student to the director of special education or other school personnel concerning the child's need for special education and related services.

20 U.S.C. § 1415(k)(8). It is important that disabled students who have not been previously identified should not be punished unnecessarily for behavior which may very well be a manifestation of their disability. The IDEA statute places a premium on being able to identify and assist disabled students as soon as their disability becomes known. As a result, parents should not hesitate to consider the possibility that disciplinary issues concerning their child may actually be an indication of a disability in need of diagnosis and educational assistance.

Autism

Emotional disability

Hearing impairment

Other health impairments

Specific learning disability

Mild, moderate or severe mental retardation

Multiple disabilities

Multiple disabilities with severe sensory impairment

Orthopedic impairment

Preschool moderate or severe delay

Preschool speech/language delay

Speech language impairment

Traumatic brain injury

Visual impairment

See A.R.S. § 15-761(2).

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