The Right to Education: Equal Access for All
In the United States, every child, regardless of disability, is entitled to a free appropriate public education (FAPE). Although education is not explicitly classified as a fundamental right under the United States Constitution, the Equal Protection Clause of the 14th Amendment supports the proposition that all children be given equal access to education. This applies to children with disabilities, ensuring they have the same educational opportunities as their peers, regardless of race, sex, disability, or economic background.
THE IDEA
The core of special education law is the IDEA, which is a federal law that is implemented at the State level through New Jersey’s education statutes and Administrative Code regulations. The goal of IDEA is to provide children with disabilities access to education that is specially designed to meet their individual needs to prepare them for future employment, independent living, and further education.
Key Components of the IDEA
- Children Covered by the IDEA:
All public school children with disabilities ages 3 to 21 years of age or high school graduation, whichever comes first, who meet the definition of a “child with a disability”. Children and youth ages 3 through 21 receive special education and related services under IDEA Part B.
Infants and toddlers, birth through age 2, with disabilities and their families receive early intervention services under IDEA Part C.
- Free Appropriate Public Education (FAPE):
FAPE guarantees that students with disabilities receive an educational program from their public school district that meets their individual needs at no cost to the parents. It involves personalized educational services, including related services, assistive technology and other supports, that are designed to offer meaningful benefit to the student.
- Individualized Education Program (IEP):
A central element of the IDEA is the IEP, a legal document that outlines the specific educational plan for a child with a disability. It must include the child’s current performance levels, short-term and long-term goals, and the supports and services required to meet those goals. Think of the IEP as though it is a contract; it is the enforceable promise by the school district to deliver the individually tailored program to the student and a failure to do so is a breach of the IEP and a denial of FAPE.
- Least Restrictive Environment (LRE):
The IDEA mandates that students with disabilities should be educated in the least restrictive environment (LRE). LRE means that, to the maximum extent appropriate, school districts must educate students with disabilities in the regular education classroom with appropriate aids and supports, along with their nondisabled peers in the school they would attend if not disabled, unless a student's IEP requires some other arrangement. The LRE is viewed as a continuum of placements that will differ depending on the individual educational needs of the student. On one end of the LRE continuum is the local public school the student would attend but for his or her disability. More restrictive placements include specialized private schools approved by the New Jersey Department of Education (NJDOE), called “out of district placements”, where more severely disabled students receive specialized services, therapies and other interventions infused throughout the student’s school day.
- Appropriate Evaluations to Determine Eligibility:
Schools must evaluate students in all areas of suspected disability to determine if the student is eligible for special education and related services. These can include social, educational, psychological, occupational therapy, speech/language therapy, physical therapy, neuropsychiatric assessments, among others.
- Parent Participation:
Parents play a crucial role in the development of the IEP. They have the right to be involved in all meetings related to their child’s education. School personnel who are members of the Child Study Team (CST) collaborate with parents to ensure that the proposed IEP meets the child’s needs.
Categories of Educational Disabilities Under IDEA
Under the IDEA, the evaluations conducted must support, through objective measures, that the child has satisfied the criteria of one of the following disabilities to be eligible for special education services:
- Autistic
- Deaf/Blindness
- Cognitively Impaired
- Orthopedically Impaired
- Emotionally Disturbed
- Other Health Impaired
- Learning Disabilities
- Preschool Child with Disability
- Orthopedic Impairments
- Social Maladjustment
- Other Health Impaired
- Specific Learning Disability
- Speech or Language Impairment
The IEP Development Process
It is important for parents who suspect that their child may have an educational disability to act promptly to obtain the necessary evaluations – free of charge – from their local public school district. Early intervention may make a considerable difference in the child’s educational development. Here’s how the process works:
- Referral for Evaluation: If a pediatrician, parent or teacher suspects that a child has a disability, a referral for evaluation should be made to the school district’s director of special education. Check your local school district’s website to obtain the contact information for the correct individual. The request for an evaluation must be in writing; a phone call will not protect you. The request can be made any time of the year, including summers.
- Evaluation and Eligibility: Once a referral is made, the school has 20 days to decide whether to evaluate the child. After parental consent is obtained, the evaluation is completed within 90 days. The evaluation should cover all areas of suspected disability.
- Development of the IEP: If the child is found eligible for special education services, the IEP is developed collaboratively by the CST with the parent at an IEP meeting. The school must obtain the parents’ written consent for the implementation of an Initial IEP. Subsequently developed IEPs will be implemented automatically after the parents’ 15-day review period has expired unless the parent files a request for mediation or due process.
- Annual Review: The IEP is reviewed annually, but may be reviewed more frequently to include any necessary updates or changes to meet the child’s evolving needs.
- Procedural Safeguards: The IDEA provides parents with procedural safeguards, including the right to advance written notice of meetings and requests for changes to the IEP. Parents can waive the necessity of an IEP meeting only with written consent. The IDEA also provides parents with a formal dispute process to challenge decisions made by the school district called “due process”. This can be done through mediation or due process hearings. Parents can represent themselves or hire an attorney who practices special education law to file with the NJDOE a Request for Mediation or Petition for Due Process.
II. SECTION 504 OF THE REHABILITATION ACT
Section 504 of the Rehabilitation Act is not an education law but provides protections for children with disabilities to ensure that disabled students are not discriminated against and have equal access to educational programs and activities that are provided to non-disabled students.
Key Features of Section 504
- Non-Discrimination: Schools must not exclude students with disabilities from participating in school activities and programs or provide them with unequal services or physical access barriers to such activities and programs.
- Accommodations and Modifications: Section 504 mandates that students with disabilities receive accommodations that allow them to participate in regular classroom settings, such as modifications to tests or classroom environments.
- 504 Plan: Unlike an IEP, a 504 plan does not require a formal written document. However, it ensures the necessary accommodations are in place for students with disabilities.
- All students with an IEP are protected from discrimination under Section 504 and may concurrently have an IEP and a 504 plan, depending on the nature of the student's disability.
Key Takeaways
Parents’ understanding of their child’s rights under the IDEA and Section 504 can significantly impact the educational outcomes of children with disabilities. Being proactive and acting promptly is key to optimizing academic success for the long term. Do not let school personnel discourage you from seeking the necessary evaluations, interventions and supports that your child needs to succeed in their educational environment. Even after your child receives an IEP and/or 504 plan, stay informed and actively participate in the educational process to ensure that the services and accommodations in those plans are consistently delivered as required. The legal process to secure appropriate educational services and supports can become complicated, particularly if your district is resistant to your request for evaluation, intervention and services. Consider consulting with an experienced attorney who practices special education law to determine what are your rights, remedies and options.
This article is informational only and should not be construed as legal advice.
ABOUT THE AUTHOR:
Arla D. Cahill is a Partner at Mandelbaum Barrett PC, where she focuses on complex litigation, special needs advocacy, and education law. As Co-Chair of the Special Needs Practice Group and Chair of the Education Law Practice Group, she is a dedicated champion for individuals with disabilities and their families. Arla is also an active lecturer, author, and community leader, serving as President of the Board of Trustees for Employment Horizons, Inc. She can be reached at acahill@mblawfirm.com
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