Quality Education for Children with Disabilities: Topic Briefs for Parents and Their Advocates

This topic brief introduces the laws most relevant to high quality public education for children with disabilities. It focuses on the three federal laws that most directly shape the education rights of children with disabilities: the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act. It then briefly identifies several other relevant laws, including Title VI of the Civil Rights Act of 1964, the Equal Educational Opportunities Act of 1964, Title IX of the Education Amendments of 1972, Title I of the Elementary And Secondary Education Act, the Carl D. Perkins Vocational and Applied Technology Education Act, and the Family Educational Rights and Privacy Act.

A. The Individuals with Disabilities Education Act, or IDEA

Congress enacted Public Law 94-142, the Education for All Handicapped Children Act in 1975 in response to the widespread failure of public school systems to provide appropriate — or in many cases, any — education to children with disabilities. The Act, which was renamed the Individuals With Disabilities Education Act ("IDEA") in 1990, provides states with funds to assist in providing specialized educational services for students with disabilities. In return, a state accepting these funds — as well as local school systems and other public agencies in the state involved in educating children — must comply with the Act’s substantive and procedural requirements. IDEA was last substantially amended in 1997.¹

The Office of Special Education Programs or "OSEP," a part of the Office of Special Education and Rehabilitative Services (“OSERS”) within the U.S. Department of Education, administers IDEA. OSEP is also responsible for ensuring compliance with the Act including, when necessary, taking enforcement action against states that are out of compliance. In addition, state departments of education are responsible for ensuring that local school districts (as well as other public, and in certain instances, private, agencies in the state that provide educational services) comply with IDEA. The Act is also enforced by parents and students bringing administrative complaints, requesting due process hearings and filing lawsuits.

1. Eligibility

Only a student who is a "child with a disability" within the meaning of IDEA is entitled to its protections. For purposes of IDEA,

"[t]he term `child with a disability' means a child with mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities...who by reason thereof needs special education and related services."²

The regulations implementing IDEA define each of these conditions in detail.³

At the discretion of a state and the local school system involved, the term "child with a disability" may also include 3 through 9 year olds who are "(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in...physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof need special education and related services."⁴

All children who have one of these disabilities and need special education and related services as a result are protected by IDEA and are eligible for the education it guarantees, even if they are advancing from grade to grade.⁵ Similarly, all “children with disabilities” are entitled to education and services regardless of the severity of their disabilities.⁶ IDEA does not allow for the possibility that some children are too severely disabled to be served; states and school systems may not refuse to provide educational services to eligible children on the ground that a child is too severely disabled to benefit from them.⁷

2. Age Ranges

IDEA compels states to make a free appropriate public education available to all children with disabilities aged three through twenty-one years unless, with respect to 3 through 5 year olds and 18 through 21 year olds, this requirement would be inconsistent with a state law or practice or a court order.⁸ Once a state, school district or other public agency undertakes to serve 3 through 5 or 18 through 21 year olds, however, all of IDEA's substantive and procedural requirements apply.⁹

A 1997 amendment to IDEA allows states to pass laws denying IDEA services to some 18 through 21 year-olds who are incarcerated in adult correctional facilities. Such state laws may exclude these youth from services if, in their last educational placement before being incarcerated, they were not identified as a “child with a disability” under IDEA, and did not have an IDEA “individualized education program.”¹⁰ These youth may be denied IDEA services only if the state actually has passed a law excluding them.¹¹

3. End of Eligibility

A student’s eligibility for services under IDEA may end in one of three ways. First, eligibility may end if a proper evaluation determines that he or she no longer meets the definition of a “child with a disability” – either because the student no longer has one of the listed disabilities, or because even though he or she still has one of them, the student no longer needs special education and related services as a result. Secondly, eligibility ends when a youth reaches the maximum age of entitlement (see above).

Finally, eligibility also ends – regardless of whether a youth has reached the maximum age for services – once a student has graduated with a regular high school diploma.¹² “Graduation” without a regular diploma, for example, with a certificate of completion or attendance, or with a “special education” diploma, does not end a student’s right to services.

B. Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 (“§504") is a civil rights statute designed to prohibit discrimination on the basis of disability. Modeled after Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 — which address racial or national origin and sex discrimination, respectively — it applies to recipients of federal funds. Section 504 as amended¹³ provides in relevant part that:

"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..."¹⁴

Because virtually all local schools and school districts receive federal funds of some sort, §504 provides an additional tool for ensuring that school-age children with disabilities receive the education to which they are entitled. Section 504 is enforced through administrative complaints and compliance reviews by the U.S. Department of Education's Office for Civil Rights or "OCR," and also through lawsuits by individuals who allege deprivation of their §504 rights.

1. Individuals Protected

For purposes of §504, an "individual with a disability" is one who

"..(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."¹⁵

"Major life activities" means activities such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.¹⁶ Virtually all children eligible for special education and related services under IDEA fall within this definition, and so are protected by §504 as well.

Because the §504 definition of an "individual with a disability," however, is broader than the IDEA definition of a "child with a disability," §504 protects many children who are not IDEA-eligible. For example, a child who has an "other health impairment," such as epilepsy or AIDS, but who does not need specialized instruction, is not a "child with a disability" within the IDEA definition. Such a child is, nonetheless, protected against discrimination by §504 and its implementing regulations if the condition “substantially limits” a “major life activity.” Similarly, a child who does not have any of the kinds of disabilities required for IDEA eligibility might nonetheless have an impairment that substantially limits a major life activity— or have a history of such an impairment, or be regarded as having such an impairment — and so be covered by §504.¹⁷

In order to be protected from discrimination by §504, an "individual with a disability" must be "otherwise qualified." For purposes of public preschool, elementary or secondary school services and activities, a child or student is "otherwise qualified" if he or she is:

! of an age during which individuals who do not have a disability are provided with such services, or

! of any age during which it is mandatory under state law to provide such services to individuals with disabilities, or

! is someone IDEA requires the state to provide with a free appropriate public education.¹⁸

2. Operation and Reach of §504

Regulations promulgated by the U.S. Department of Education interpret and implement §504's broad ban on discrimination as it applies to recipients of Department of Education funds.¹⁹ In regard to preschool, elementary and secondary education, these regulations operate in two basic ways: (1) by generally prohibiting certain practices as illegal discrimination, and (2) by compelling school systems to take certain affirmative steps to ensure that all students with disabilities receive a free appropriate public education.

Free Appropriate Public Education Like IDEA, the regulations implementing §504 require public school systems to provide a free appropriate public education in the least restrictive environment regardless of the nature or severity of a student's disability.²⁰ Unlike IDEA, a free appropriate public education under §504 may include "regular" education as well as "special" education, along with any needed related aids and services.²¹ Many specific §504 requirements concerning issues such as the evaluation and placement of pupils with disabilities, the components of a free appropriate public education, the circumstances under which a student with disabilities may be removed from the regular education setting, and procedural safeguards mirror or complement IDEA mandates.^*

Prohibited Discriminatory Practices In addition to establishing specific requirements for preschool, elementary and secondary school programs, the U.S. Department of Education’s §504 regulations ban all recipients of federal Department of Education funds from engaging in certain discriminatory practices. The §504 regulations of all other federal agencies contain comparable provisions. Key illegal practices include:

! denying a "qualified” individual with a disability the opportunity to participate in or benefit from an aid, benefit or service;²²

! affording a "qualified” individual with a disability an opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded others;²³

! using policies or practices that have the effect of subjecting children with disabilities to discrimination, or of defeating or substantially impairing the objectives of the education program for students with disabilities.²⁸

These broad prohibitions have been used successfully to challenge a wide variety of school practices not specifically addressed by other §504 regulations or IDEA.²⁹

C. The Americans with Disabilities Act, or ADA

The Americans with Disabilities Act ("ADA") was passed by Congress in 1990. The ADA is divided into five parts or "Titles." Most relevant to quality public education for students with disabilities is Title II, which prohibits discrimination by public entities -- such as public schools, school systems, state departments of education, etc. -- regardless of whether they receive federal funds.³⁰ In the context of public education, the ADA is enforced by the U.S. Department of Education’s Office for Civil Rights, as well as through lawsuits filed by students whose rights have been violated.

1. Individuals Protected

Like §504, Title II of the ADA protects only "qualified" individuals from discrimination, stating that

"no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."³¹

The ADA definition of an "individual with a disability" parallels the §504 definition, discussed above.³²

A "qualified" individual with a disability under Title II of the ADA is someone who,

"with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."³³

Public entities such as schools must make "reasonable modifications," remove "barriers," and provide "auxiliary aids and services" as needed to enable an individual to meet "essential eligibility requirements," and thus be a "qualified" individual with a disability.

2. Operation and Reach

As is the case with §504, the ADA statute is implemented by regulations that provide further detail about what constitutes unlawful discrimination. The Title II ADA regulations were modeled on the §504 regulations, and prohibit all of the discriminatory practices made illegal under §504.³⁴ The ADA regulations also make explicit some obligations that are implicit in the older §504 regulations. For example, the ADA regulations state that public entities, including schools, must make reasonable changes in their policies, practices and procedures when necessary to avoid disability discrimination (unless the changes would "fundamentally alter" the nature of the program in question), and may not use eligibility criteria that screen out or tend to screen out an individual with a disability, or individuals with a particular kind of disability, from full and equal participation in programs, unless the criteria are necessary to the program.³⁵

D. Related Laws

While IDEA, §504 and, to a lesser extent, the ADA are the focus of this booklet, they are not the only laws relevant to the right of students with disabilities to a quality public education. Other laws of which parents and advocates should be aware include the following.

State “special education” laws Virtually all states have enacted their own special education statutes and regulations. These state laws supplement IDEA, and often fill in many details not addressed by federal law. State law may not be used to diminish IDEA or other federal rights. State statutes or regulations that give students and parents greater protection than does IDEA are permissible; statutes or regulations that undermine IDEA protections are not.

Title VI of the Civil Rights Act of 1964 Title VI prohibits recipients of federal funds from discriminating on the basis of race, ethnicity or national origin.³⁶ This includes discrimination on the basis of a child’s limited English proficiency.³⁷

Equal Educational Opportunities Act of 1974 The Equal Educational Opportunities Act³⁸ deals primarily with illegal racial segregation in school assignment, and legal remedies to address it. Another important provision requires states and local school districts to take “appropriate action to overcome language barriers that impede equal participation by...students in...instructional programs,”³⁹ augmenting Title VI as a source of rights for children who are limited English proficient.

Title IX of the Education Amendments of 1972 Title IX prohibits recipients of federal education funds from discriminating on the basis of sex.⁴⁰ This includes discrimination against teens who are pregnant or parenting.⁴¹

Title I of the Elementary and Secondary Education Act Title I⁴² is the largest federal spending program for elementary and secondary education, channeling funds to areas with high concentrations of low-income students to promote school reform. The Title I law contains numerous program requirements for participating schools, all of which focus on assisting students to attain the challenging academic standards set by the state for all students. Title I explicitly identifies students with disabilities as intended beneficiaries of its reforms.⁴³

Carl D. Perkins Vocational and Applied Technology Education Act The Carl D. Perkins Vocational and Technical Education Act⁴⁴ governs about a billion dollars in federal vocational education appropriations annually. The overwhelming majority of school districts receive Perkins Act funds, and are subject to its requirements. These includes mandates, added to the law in 1990 and strengthened in 1998, for programs of high quality that prepare students to meet the challenging state academic standards set for all students and to enter high-wage careers and postsecondary education; teach them all aspects of the industry they are studying (rather than narrow skills) and integrate academic and vocational learning. Perkins also includes strong equity mandates, requiring states and schools to plan for successful participation by students with disabilities (and other members of what Perkins calls “special populations,” including students who are limited English proficient, or whose families are economically disadvantaged) in these high quality programs.⁴⁵

State education reform laws Many states have enacted comprehensive school reform laws that address such issues as standards for what all students should know and be able to do, testing and assessment of students and promotion and graduation requirements. These laws have a profound impact on the education and education rights of children with disabilities, regardless of whether the laws explicitly address their participation.

Family Educational Rights and Privacy Act The Family Educational Rights and Privacy Act (“FERPA”)⁴⁶ addresses student records, and applies to all educational institutions that receive funds from the U.S. Department of Education -- and so to virtually all public schools (and many private ones as well). FERPA protects the right of parents to inspect and review their child’s education records, and the right of students aged 18 and over to inspect and review their own records. FERPA also protects the confidentiality of education records, and provides parents and students with opportunities for correcting inaccurate records..

NOTES

^* Section 504 also protects students who attend private day care, preschool ,elementary and secondary schools that receive federal funds, or that are used as placements by public school systems, from disability-based discrimination. The §504 rights of these students vary depending upon the kinds of programs and services offered and the circumstances under which a particular student has come to attend.

1. See Public Law 105-17, 111 Stat. 37 (June 4, 1997), codified at 20 U.S.C. §1400 et seq..

2. 20 U.S.C. §1401(3)(A) (emphasis added).

3. See 34 C.F.R. §§300.7(c), 300.541. The IDEA regulations were substantially amended in March 1999. Note that 34 C.F.R. §300.7(c)(9) now explicitly includes attention deficit disorder and attention deficit hyperactivity disorder as examples of conditions that may trigger IDEA eligibility under the category of “other health impairment.”

4. 20 U.S.C. §1401(3)(B); 34 C.F.R. §300.7(b). Note that a local school system may not adopt developmental delay as a basis for IDEA eligibility unless the state, too, has done so. See 34 C.F.R. §300.313(4).

5. 34 C.F.R. §300.121(e)(1).

6. 20 U.S.C. §1412(a)(3)(A).

7. Id. See also, e.g., Timothy W. v. Rochester School District, 875 F.2d 954 (1st Cir. 1989), cert. denied, 110 S. Ct. 519.

8. 20 U.S.C. §1412(a)(1)(B). The U.S. Department of Education regulations implementing IDEA further explain this requirement. See 34 C.F.R. §300.300.

9. 34 C.F.R. §300.300(b)(4).

10. 20 U.S.C. §1412(a)(1)(B)(ii); 34 C.F.R. 300.122(a)(2).

11. 34 C.F.R. §300.122(b)(2).

12. 34 C.F.R. §300.122(a)(3).

13. 29 U.S.C. §794.

14. 29 U.S.C. §794(a).

15. 29 U.S.C. §705(20)(B). The term "physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin or endocrine systems, as well as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 34 C.F.R. §104.3(j)(2)(i).

16. These examples of “major life activities” are listed in the §504 regulations. See 34 C.F.R. §104.3(j)(2)(ii). Courts have found other activities to be “major life activities” for §504 purposes as well. See, e.g., Doe v. New York University, 666 F.2d 761, 775 (2nd Cir. 1981) (psychiatric impairment limited medical student's major life activity of handling stressful situations such as those encountered in medical training; court noted her prior academic achievements, and lack of learning difficulties); Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) (plaintiff who has HIV-positive was limited in the major life activities of "procreation, sexual contact and normal [sic] social relationships"); Perez v. Philadelphia Housing Authority, 677 F. Supp. 357 (E.D. Penn. 1987), aff'd. without opinion, 841 F.2d 1120 (3^rd Cir. 1988) (back pain affected major life activities of walking, sitting, standing, driving, caring for home and child, and engaging in leisure pastimes).

17. For example, a student who has been erroneously classified as having mental retardation or who has a record of "incorrigible" behavior might be "regarded as having...an impairment" or have "a record of...an impairment" for purposes of §504. In addition, a child who does not have any of the disabilities listed in IDEA might nonetheless have an actual, current "impairment" for §504 purposes. A child who is HIV positive but asymptomatic — and so not "other health impaired" as defined by IDEA — would fall within this category. See Bragdon v. Abbott, 524 U.S. 624 (1998).

18. 34 C.F.R. §104.3(k)(2).

19. The Department's §504 regulations are codified at 34 C.F.R. part 104.

20. 34 C.F.R. §§104.33(a), 104.34(a).

21. 34 C.F.R. §104.33(b).

22. 34 C.F.R. §104.4(b)(1)(i).

23. 34 C.F.R. §104.4(b)(1)(ii).

24. 34 C.F.R. §104.4(b)(1)(iii).

25. 34 C.F.R. §104.4(b)(1)(iv).

26. 34 C.F.R. §104.21. This provision should be read along with 34 C.F.R. §§104.22, 104.23, which delineate the circumstances under which recipients need or need not remove architectural barriers in order to meet this requirement.

27. 34 C.F.R. §104.4(b)(1)(vii).

28. 34 C.F.R. §104.4(b)(4).

29. See, e.g., Orange County (FL) School District, 28 IDELR [Individuals with Disabilities Law Report] 492 (OCR 11/18/97) (shortened school day due to transportation schedule); Pocantico Hills (NY) Central School District, 20 IDELR 265 (OCR 5/3/93) (exclusion of child with learning disabilities and behavioral manifestations from summer camp program); Mt. Gilead (OH) Exempted Village School District, 20 IDELR 765 (OCR 8/13/93) (withholding complete information about field trips from parents of children with disabilities); Garaway (OH) Local School District, 17 EHLR [Education of the Handicapped Law Report] 237 (OCR 9/13/90) (carrying mobility impaired student on and off school bus rather than providing accessible transportation); Sumter County (SC) School District #17, 17 EHLR 193 (OCR 9/28/90) (disabled student disciplined more harshly than others); Duchesne County (UT) School District, 17 EHLR 240 (OCR 9/13/90) (providing special education students with shorter school day and longer bus rides than regular education students); Nashville-Davidson County (TN) Schools, 16 EHLR 379 (OCR 12/21/89) (refusing to enroll students with disabilities in particular vocational education program); New Carlisle-Bethel Local School District, EHLR 257:477 (OCR 1/30/84) (inaccessible classrooms prevented mobility impaired student from taking certain classes); Tucson (AZ) Unified School District No. 1, EHLR 352:47 (OCR 2/16/84) (failure to utilize adaptive equipment in order to make driver's education course accessible to mobility impaired students); Fayette County (KY) School District, EHLR 353:279 (OCR 3/1/89) (admission to after school program); Jefferson County (KY) School District, EHLR 353:176 (OCR 9/19/88) (admission to summer enrichment program); Carbon-Lehigh (PA) Intermediate School District #21, EHLR 352:108 (OCR 9/20/85) (offering only limited electives in segregated school for emotionally disturbed students in comparison to range of electives available to regular education students).

30. The other Titles of the ADA address employment (Title I), public accommodations and services operated by private entities (Title III), telecommunications (Title IV) and miscellaneous other issues (Title V).

31. 42 U.S.C. §12132.

32. See 42 U.S.C. §12102(2).

33. 42 U.S.C. §12131(2) (emphasis added).

34. See 28 C.F.R. §35.130(b).

35. 28 C.F.R. §35.130(b)(7), (8).

36. 42 U.S.C. §2000d; see also 34 C.F.R. part 100 (U.S. Department of Education/Office for Civil Rights regulations).

37. See Lau v. Nichols, 414 U.S. 563 (1974).

38. 20 U.S.C. §1701 et seq.

39. 20 U.S.C. §1703(f).

40. 20 U.S.C. §1681; see also 34 C.F.R. part 106 (U.S. Department of Education/Office for Civil Rights regulations).

41. For the Title IX regulations explicitly addressing discrimination based upon pregnancy, parenting or family status, see 34 C.F.R. §§106.21(c), 106.40.

42. 20 U.S.C. §6301 et seq.

43. See, e.g., 20 U.S.C. §§6301(b)(3); 6311(b)(3)(F)(i), (ii); 6312(b)(4)(B); 6314(b)(2)(v); 6315(b)(2)(A)(i). For a discussion of Title I, as amended by the Improving America’s Schools Act of 1994, see Margot Rogers, Planning for Title I Programs (1995), available from the Center for Law and Education, 1875 Connecticut Ave., N.W., Suite 510, Washington, D.C. 20009 (phone: 202/986-3000; fax: 202/986-6648).

44. 20 U.S.C. §2301 et seq., as amended by Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. No. 105-332, 112 Stat. 3076 (October 31, 1998).

45. See Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. No. 105-332, 112 Stat. 3076 (October 31, 1998), sec. 1, §§122(c)(7), (8) and 134(b)(7) (8), 112 Stat. at 3104, 3115 (to be codified at 20 U.S.C. §§2342(c)(7), (8) and 2354(b)(7), (8). For a full discussion of this topic, see Eileen L. Ordover and Leslie T. Annexstein, Ensuring Access, Equity, and Quality for Students in School-to-Work Systems (1999), available from the Center for Law and Education, 1875 Connecticut Ave., N.W., Suite 510, Washington, D.C. 20009 (phone: 202/986-3000; fax: 202/986-6648).

46. 20 U.S.C. §1232g. See also the FERPA regulations, which may be found at 34 C.F.R. part 99.