Appropriately Ambitious:

A Special Education Legal Blog 

“But [the student’s] educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives”

Endrew F. v. Douglas Cnty. Scl. Dist. RE-1, 137 S.Ct. 988, 1000 (2017).

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  • Patrick G. Radel, Esq.

5 Special Ed Laws We Should be Thankful For (& Give More Attention To!)


As we gather around the table for turkey and talking, I propose that those of us who love and support students with disabilities take a moment to be thankful for the following 5 provisions of IDEA (the main federal special education law) and resolve to pay more attention to them for what remains of the 2022-23 school year.

 

1. Least Restrictive Environment – 20 U.S.C. § 1412 (a)(5)(A)​


Federal law requires that students with disabilities be included in general education “to the maximum extent appropriate” and can be removed to separate settings “only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”


How strong is this legal inclusion mandate?


Just ask the Supreme Court of the United States (in a case decided more than 40 years ago):


“[IDEA] requires participating States to educate handicapped children with nonhandicapped children whenever possible.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 202, 102 S. Ct. 3034, 3049, 73 L. Ed. 2d 690 (1982)(emphasis added).


How inclusive is your school? Are students with disabilities being included (and supported) in general education “whenever possible”? Did you know that, given advances in teaching techniques and assistive technology, successfully supporting students with disabilities in general education is more possible than ever before?

 

2. Strength-Based IEPs – 20 U.S.C. § 1414 (d)(3)(A)(i)


Federal law requires that several factors be considered when developing each student’s Individualized Education Program (“IEP”).


The first factor that must be considered is “the strengths of the child.” Federal regulations make clear that an IEP must take “into account the child’s strengths, preferences, and interests ….” 34 CFR § 300.43 (a)(2).


Is that where the conversation began at the last IEP meeting you attended? If not, consider adopting a strength-based approach (see here, here, or here for some suggestions). Too many IEPs are deficit-focused and pay no meaningful attention to the skills the student has, the interests that motivate them, or the preferences they have for how they want to live and learn.


A strength-based IEP is not only best practice – it’s the law.

 

3. Parental Participation - 20 U.S.C. § 1414 (d)(3)(A)(ii); 20 U.S.C. § 1415 (b)(1)


Another legally-required factor to be considered when developing an IEP is “the concerns of the parents for enhancing the education of their child.”


Parental participation is considered a pillar of IDEA and parents/guardians are required members of the committee responsible for developing the IEP.


Congress made this “finding of fact” when it reauthorized IDEA in 2004:


"Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by—​strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home" 20 USC §1400 (c ) (5)(B)​.


If you’re an educator, administrator, or related service provider are you appreciating and facilitating meaningful parental participation? If you’re a parent or guardian are you recognizing your critical role in the IEP process – both as a matter of fact and as a matter of law?

 

4. Supports for School Personnel – 20 U.S.C. § 1414 (d)(1)(A)(i)(IV)


The law states that an IEP must identify and describe “the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child.”


This last section is often passed over – an IEP should provide for services and supports to the educators, paraprofessionals, and related service providers to help them understand the student and meet her needs.


The New York State Education Department has provided some good examples of supports for school personnel on behalf of the student:

  • information on a specific disability and implications for instruction;

  • training in use of specific positive behavioral interventions;

  • training in the use of American Sign Language;

  • assistance with curriculum modifications;

  • behavioral consultation with a school psychologist, social worker or other behavioral consultant; and/or

  • transitional support services.

(I would add professional development in the area of assistive technology and augmentative communication, which are often severely underutilized resources).


At your next IEP meeting consider what the student needs AND what the school team supporting the student may need in terms of services, resources, and information.


The next time someone at your school says "we don't do that here" or "we can't do that"- ask whether the solution might not be some skill-building, mindset-changing professional development opportunities!

 

5. Procedural Safeguards – 20 U.S.C. § 1415


Federal law imposes many obligations on school districts and gives important rights to students with disabilities and their parents. To enforce those obligations and protect those rights, the law contains several procedural safeguards.


Among these safeguards are:


(a) the right to examine all records related to the child and participate in meetings regarding identification, evaluation, and placement;


(b) the right to receive prior written notice of any change to the IEP (or of the school’s decision to refuse to make a change the parent requested);


(c) the right to present a complaint to the State Education Department; and


(d) the right to have an impartial hearing officer conduct a due process hearing to determine whether the school followed the law and, if not, to order “appropriate relief” for any legal violation(s).


Is your school following the law? If not, do you know what your procedural safeguard rights are and how to go about exercising them? If not, consider consulting an attorney or advocate with special education experience.

 

Many provisions and protections to be thankful for – lots more work to do to make sure those rights are realized for more students and their families. Happy Thanksgiving and thanks for all you do to advance this good work.

For legal education only.  This does not constitute legal advice or establish an attorney-client relationship.