Quality Education for Children with Disabilities:
Topic Briefs for Parents and Their Advocates
#2 – The Right to Learn In The General Curriculum and
the Relevance of State Standards
In recent years, as a central part of education reform initiatives, most states have adopted content and student performance standards for what all children should know and be able to do at various points in their schooling. The general curriculum reflects these standards. The Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act give students with disabilities clear legal rights to participate meaningfully in the general curriculum – regardless of the kind of classroom or setting in which they are receiving their education. This includes the right to specially designed instruction and support services geared to attainment of the standards and successful learning in the general curriculum. This topic brief discusses these participation rights.
The Definition of FAPE and the Relevance of State Standards Under IDEA
The Individuals with Disabilities Education Act (“IDEA”) entitles all eligible children to a “free appropriate public education,” or “FAPE”, defined in the Act as special education and related services that
•
are provided at public
expense, under public supervision, at no charge to parents;
•
are provided in
conformity with a properly developed IEP;
•
include an appropriate
preschool, elementary or secondary education in the state involved; and
•
meet the standards of
the state education agency.1
The latter two criteria are central to the right of
students with disabilities to meaningful opportunities to learn in the general
curriculum. They establish that the
goals and content of a child’s special education (specially designed
instruction) and related services are
not to be designed in a vacuum but, rather, by reference to the meaning and
content of education for all students in that state, school district and
school.
The
general curriculum and any state (or local) content and student performance
standards define (in part) "an appropriate elementary or secondary
education in the State involved."
In
addition, state-adopted content and performance standards are "standards of the state educational agency." FAPE thus includes meaningful opportunities to learn the body of knowledge and range of skills that all students are expected to master, through specialized instruction and services designed to address the unique disability-related needs of children with disabilities and to enable them to succeed in the general curriculum.
Other IDEA Provisions Regarding Participation in the General Curriculum
The 1997 amendments to IDEA reinforce and make more explicit this mandate from prior law. Critical provisions include the following:
Evaluations Evaluations must gather information about strategies and interventions that the child needs to participate and progress in the general curriculum.2
Definition of Specially Designed Instruction The “specially designed instruction” that makes up “special education” includes adapting the content, methodology or delivery of instruction to ensure a child’s access to the general curriculum, so that he or she can meet the educational standards that apply to all children.3
Individualized Education Programs IEPs must describe how the child's disability affects participation and progress in the general curriculum. They must also contain goals and objectives geared towards enabling him or her to do so. IEPs are to include special education, related services, supplementary aids and services and supports for school personnel that will allow the student to progress in the general education curriculum. IEPs must be reviewed periodically and revised to address any lack of expected progress in the general curriculum.4
IEP Teams IEP teams must include someone knowledgeable about the general education curriculum, as well as at least one of the child's regular education teachers if the child is or may be participating in the regular education environment.5
Promising Practices As did prior law, IDEA as amended in 1997 requires states and school systems to keep abreast of research-based promising practices for teaching students with disabilities the general curriculum, and to incorporate these practices as appropriate into IEPs.6
Assessment Children with disabilities must be included in general state and district-wide assessments, with appropriate accommodations or alternate assessments where necessary.7
Performance Goals States must set goals for the performance of students with disabilities. These goals must be consistent with any goals and standards the state has set for students in general.8
Accountability The new law requires states and school districts to gather and make public information that parents can use to hold schools accountable for how well their children do in school. First, states must set "performance indicators" they will use to assess how well the state is doing in educating children with disabilities, including at least performance on assessments, drop-out rates and graduation rates. The state must report to the public on how well it is doing on these indicators every two years. In addition, the state must make public statistics showing how children with disabilities fare on the general assessments given to all students, including how many are participating and how they achieve.9 It must do the same regarding children who take alternate assessments.10
The Right to Equally Effective Educational Programming Under §504 and the ADA
Apart from any IDEA requirements, the §504 and ADA regulations require schools to provide the vast majority of students with disabilities with the instruction and supports necessary to allow them to learn what the general curriculum teaches, including the knowledge and skills called for by any standards the state has adopted for all students. These regulations may also require schools to change practices that hinder effective access to the general curriculum, or other instruction tied to the standards set for all students.
The §504 regulations require public school systems to provide all children with disabilities a "free appropriate public education" consisting of "regular or special education and related aids and services that...are designed to meet individual educational needs...as adequately as the needs of nonhandicapped persons are met...."11 The regulations also prohibit schools from affording qualified students with disabilities "an opportunity to participate in or benefit from...[an] aid, benefit or service that is not equal to that afforded others," providing "an aid, benefit, or service that is not as effective as that provided to others," or providing "different or separate aid, benefits, or services unless...necessary to provide...aid, benefits, or services that are as effective as those provided to others."12 The ADA regulations applicable to state and local governmental services contain the same prohibitions.13
In order to be "equally effective" under these regulations, aids benefits and services "must afford...equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement in the most integrated setting appropriate to the [student's] needs."14 The opportunity to learn the general curriculum and to meet content and performance standards, define the inputs and outcomes, respectively, of a quality education - and so the "aid, benefit or service" that is public education. If students capable of participating, with or without appropriate services, are denied educational opportunities designed to allow them to learn in the general curriculum and attain the standards set for all students, they are provided instead an "aid, benefit or service that is not equal to that afforded others," that "is not as effective as that provided to others," and that is unnecessarily "different or separate," in violation of the §504 and ADA
2. “Criteria and Methods of Administration” that Discriminate
The §504 regulations also make it illegal for school systems running programs to "utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap,[or] (ii) that have the...effect of defeating or substantially impairing accomplishment of the objectives of the...program with respect to handicapped persons...."15 The ADA regulations contain a similar ban.16 “Criteria” are written policies; “methods of administration” are a school system’s actual practices.
In public school systems, learning what is included in the standards and the general curriculum is one of the key "objectives of the program or activity."17 "Criteria or methods of administration" that limit the opportunities for students with disabilities to receive the educational programming necessary for them to do so "have the...effect of defeating or substantially impairing the accomplishment of"18 this objective, and constitute prohibited discrimination.
Avoiding such discrimination requires school systems to identify and examine policies and practices that may have the effect of limiting access to the kind of instruction necessary to attain the standards or otherwise achieve in the general curriculum. Depending upon the circumstances, any number of policies and practices might have this effect. Examples include lack of coordination (in terms of both scheduling and content) between pull-out programs like resource rooms and the mainstream academic curriculum; providing a diluted curriculum in programs and classes labeled as serving students with behavioral (or any other) disabilities;19 inappropriate reliance upon punitive discipline, including disciplinary exclusion; and the failure to provide for the appropriate integration of special education supports and related services, including behavioral supports, into what are conceived of as regular education classes.20
NOTES
1. See 20 U.S.C. §1401(8).
5. 20 U.S.C. §§1414(d)(1)(B); 34 C.F.R. §300.344(a)(2), (4)(ii).
6. 20 U.S.C. §1412(a)(14) as amended, incorporating by reference 20 U.S.C. §1453(c)(3)(D)(vii); 20 U.S.C. §1413(a)(3)(A), incorporating by reference 20 U.S.C. § 1453(c)(3)(D)); 34 C.F.R. §300.382(g). See also Timothy W. v. Rochester School District, 875 F.2d 954, 966-67, 973 (1st Cir. 1989), cert. denied, 493 U.S. 983, 110 S. Ct. 519 ("Congress clearly saw education for the handicapped as a dynamic process, in which new methodologies would be continually perfected, tried, and either adopted or discarded, so that the state's educational response to each...child's particular needs could be better met"; "...educational methodologies are not static, but are constantly evolving and improving. It is the school district's responsibility to avail itself of these new approaches in providing an education program geared to each child's individual needs.").
7. 20 U.S.C. §1412(a)(17)(A); 34 C.F.R. §300.138. For the small number of children who cannot participate even with accommodations, states and school districts must create alternate assessments. Id. .
8. 20 U.S.C. §1412(16); 34 C.F.R. §300.137. This means that the state cannot set separate, weaker standards for students with disabilities. Rather, the state must supplement the goals and standards it uses for all students with any additional ones required by the unique needs of children with disabilities.
9. This requirement applies only if doing so would be statistically valid and would not result in the disclosure of performance results identifiable to individual children. 20 U.S.C. §1412(a)(17)(B)(iii)(I); 34 C.F.R. §300.139(a)(2).
13. See 28 C.F.R. §35.130(b)(1)(ii) - (iv).
15. 34 C.F.R. §104.4(b)(4). OCR has defined "criteria" as written or formal policies, and "methods of administration" as a state or school system's actual practices and procedures. See Illinois State Bd. of Ed., 20 Individuals with Disabilities Education Law Report [IDELR] 687 (OCR 12/3/93).
16. See 28 C.F.R. §35.130(b)(3). See also 28 C.F.R. §35.130(b)(7) (public entity must make reasonable modifications in policies, practices or procedures when necessary to avoid discrimination on basis of disability, unless entity can demonstrate that modifications would fundamentally alter the nature of its program, service or activity); 28 C.F.R. §35.130(b)(8) (public entity may not impose or apply eligibility criteria that screen out or tend to screen out individuals with disabilities or any class of individuals with disabilities from fully and equally enjoying any service, program or activity unless such criteria can be shown to be necessary for provision of the service, program or activity being offered) (emphasis added).
19. See also 34 C.F.R. §104.34(c) (services provided in facilities identifiable as being for individuals with disabilities be comparable in quality to those provided to nondisabled individuals).
20. Cf. Judith E. Heumann and Thomas Hehir, U.S. Department of Education/Office of Special Education Programs Memorandum 95-5, November 23, 1994, reprinted at 21 IDELR 1152 (educational decisions under IDEA may not be based solely on administrative convenience or the configuration of the delivery system); Response to Inquiry of Latshaw, Education of the Handicapped Law Report [EHLR] 213:124 (OSEP 3/1/88).