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Update on the Law of Special Education
Annual Conference of the
South Dakota Association of
School Business Officials
Pierre, South Dakota
September 28, 2011
Charles J. Russo, J.D., Ed.D.Panzer Chair in Education Adjuntct Professor of LawUniversity of Dayton(937) 229-3722 (ph)[email protected]
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Outline
I. Introduction
II. Section 504 of the Rehabilitation Act of 1973 (504)
III. Individuals with Disabilities Education Act (IDEA)
IV. Section 504 v. IDEA
V. Conclusion
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Introduction
How Attitudes Have Changed
See, e.g., State v. Board of Educ. of City of Antigo, 172 N.W. 153
(Wis. 1919) (affirming the exclusion of a student whose paralysis
caused him to speak hesitatingly and drool uncontrollably even
though he had the academic ability to benefit from school because
“his physical condition and ailment produce[d] a depressing and
nauseating effect upon the teachers and school children.”).
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I. Introduction
Two KEY Early Cases
Pennsylvania Association for Retarded Children v.
Pennsylvania (PARC),334 F. Supp. 1257 (E.D. Pa. 1971),
343 F. Supp. 279 (E.D. Pa. 1972).
Mills v. Board of Education of the District of Columbia,
348 F. Supp. 866 (D.D.C. 1972).
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I. Introduction
Two Primary Statutes
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794(a)
Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 et seq.
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II. Section 504
“No otherwise qualified individual with a
disability in the United States ... shall, solely by
reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance....”
29 U.S.C.A. § 794(a).
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II. Section 504
Eligibility
a) have, had believe, to have had impairment that
significantly impacts a major life activity (such as
school or work)
b) otherwise qualified
c) in program that receives federal financial assistance
d) reasonable accommodations
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II. Section 504
Defenses
a) cost
b) health and safety
c) significant alteration in nature of program
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II. Section 504
Section 504 Service Plans ≠ IEPsDemographic Data: student’s name, date of birth, school
identification number, grade, school, teacher, parents’ names, address, telephone numbers,
Team Members
Impairment: a detailed description of the student’s impairment and its severity, along with an explanation of how it impedes the child’s educational progress
Accommodations and Services: a detailed description of the accommodations and services to be offered under plans, including the frequency and location of services, where they will be provided, and by whom they will be provided
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Cf. IEP
IEPs must describe
students’ current levels of educational performance,
annual goals and short-term objectives,
the specific services that they will receive,
the extent to which they can take part in general education,
the date services begin and how long they will be offered,
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Cf. IEP
criteria to evaluate whether they are achieving their goals.
how students' disabilities affect their ability to be involved in and
progress in inclusive settings
necessary modifications to allow them to take part in the general
curriculum
and detail related services that students need to benefit from their
IEPs.
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III. IDEA20 U.S.C. § 1400(3)Child with a disability(A) In general
The term "child with a disability" means a child-(i) with mental retardation, hearing impairments
(including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.
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III. IDEA
1) Eligibility
a) 3-21
b) specifically identified disability
c) need special education (aka IEP)
d) need related services
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III. IDEA
2) Key Elements
a) FAPE cf. Rowley v. Board of Education
b) LRE cf. Timothy W. v. Rochester (zero reject)
c) parental input
d) due process cf. Honig v. Doe (discipline)
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III. IDEA
Continuum of Placements
1. Full inclusion . . . a GOAL NOT a RIGHT
2. Full inclusion with an aide
3. Full inclusion with an aide and pull out
4. Self-contained placement
1-4 SHOULD be in the child’s “neighborhood” school
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III. IDEA
Continuum, Cont’d
5. Special day school
6. Hospital and homebound
7. Residential Placement
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IV. 504 v. IDEAThere are at least eight major differences
between Section 504 and the IDEA.
1. while Section 504 applies to school systems that
receive federal financial assistance, whether in the
form of money, books, or free lunches, they do not
receive additional funds under its provisions as do
the boards that serve children who qualify for IDEA
services.
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IV. 504 v. IDEA
2. Section 504 protects individuals under the broader
notion of impairment rather than the IDEA's reliance
on the statutorily defined, and delineated, disabilities.
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IV. 504 v. IDEA
3. Section 504 has no age limitations while the IDEA
covers students from the ages of 3 to 21 or when they
complete high school.
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IV. 504 v. IDEA
4. the IDEA includes much more extensive due process
protections than Section 504, including the
requirement that school officials provide written
Individualized Education Programs for students who
are covered by the IDEA.
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IV. 504 v. IDEA
5. unlike the IDEA, Section 504 does not require
parental consent although educators would be wise to
seek it when providing accommodations for students.
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IV. 504 v. IDEA
6. while the IDEA places an affirmative obligation on
states, through local school boards to identify, assess,
and serve students with disabilities, including those
whose parents placed them in private schools,
individuals seeking the protections of Section 504
must request accommodations from school officials
and may be required to submit proof that they are
qualified if there is a difference of opinion.
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IV. 504 v. IDEA
7. while Section 504 covers students, employees, and
others, including parents, in schools, the IDEA is
limited to students.
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IV. 504 v. IDEA
8. Unlike the IDEA’s zero-reject approach, school
officials can rely on Section 504's three defenses to
avoid being charged with noncompliance.
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V. Conclusion
Knowledge is power . . .
Francis Bacon
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