Patrick G. Radel, Esq.
IDEA @45 - Progress & Possibilities
This past Sunday marked a milestone for special education law. On November 29, 1975, President Gerald Ford signed the Education for All Handicapped Children Act. For the past 45 years, that law, now known as the Individuals with Disabilities Education Act ("IDEA") has provided progress, promise, and possibilities for students, parents, and educators. What did IDEA actually accomplish? What still needs to be done?
A short summary of the law and some suggestions:
Six Pillars of IDEA
The core components of IDEA, commonly referred to as the "Six Pillars," are:
Free Appropriate Public Education ("FAPE") - IDEA provides that students with disabilities are entitled to a FAPE, which the law defines as special education and related services (therapies, assistive technology, professional development, etc.), provided at public expense, through a program based on the student's unique needs. 20 U.S.C. § 1401 (9).
Individualized Education Program ("IEP") - Students receive a FAPE through an IEP - a comprehensive, written plan, created by a team of knowledgeable individuals (including the student's parents), who design a program and provide a placement tailored to the unique needs of the student. The IEP must be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. How much "benefit"? Chief Justice John Roberts, speaking for a unanimous Supreme Court, said that an IEP must be "appropriately ambitious" in light of the child's circumstances, because while "[t]he goals may differ," "every child should have the chance to meet challenging objectives." Endrew F., 137 S.Ct. at 1000.
Least Restrictive Environment ("LRE") - Students with disabilities must be educated with their typical peers "to the maximum extent appropriate" and should be removed from general education only "when the nature or severity of the disability ... is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). In other words, IDEA presumes that inclusion is the proper placement and removal should be the exception, rather than the rule.
Appropriate Evaluations - A student's IEP, disability classification, and placement are determined through an evaluation process, consisting of a "variety of assessment tools and strategies," including information provided by the parent, using measures and methods that are "technically sound" and administered and evaluated by knowledgeable professionals. 34 CFR § 300.304.
Parent Participation - Parents are legally required members of the team that develops the IEP and they are recognized as "child-specific" experts with unique insights into the student's global development, strengths, and needs. 20 U.S.C. § 1415 (B)(1). A school that determines a student's educational program or placement without "meaningful participation" from the parent(s) has violated IDEA. Deal, 392 F.3d at 858.
Procedural Safeguards - Parents must be informed of their procedural safeguard rights under IDEA, including their right to seek "due process" review and/or mediation if they disagree with the educational program or placement. Parents are also entitled to independent educational evaluations at public expense, access to the student's educational records, and prior written notice of any changes to program or placement, with that notice being provided in the parent's native language. 34 CFR § 300.504.
Let's Celebrate. We've come a long way! We should celebrate this progress. In 1970, U.S. schools educated only 1 in 5 students with disabilities and many states had laws that expressly excluded such students from public schools. During the first full school year after the law was enacted (1976-77), about 3.7 million students ages 3-21 received special education supports and services. In 1986, the law was expanded to include early intervention services for infants and toddlers. In the 2018-19 school year, more than 7.5 million infants, toddlers, and students with disabilities received IDEA supports and services. Across the country, many students with disabilities are successfully supported in general education classes, where they form friendships and build skills alongside their typical peers.
Let's Appreciate. We stand on the shoulders of giants. Our progress is possible because of victories won and legal protections obtained by courageous pioneers who went before us. Let's express appreciation for the self-advocates, parents, educators, lawmakers, journalists, attorneys, and allies who protested, litigated, lobbied, and achieved this progress. Here's to you Judy Heumann, Pete & Pam Wright, Justin Dart, Norman Kunc, Ed Roberts, Jack Robinson, Carrie Ann Lucas, and countless others!
Let's Advocate. There's more work to be done!
When Congress enacted IDEA, it promised to cover 40% of the extra expense of special education, but it currently pays less than 15%. More federal funding is needed, perhaps now more than ever.
Too many students are still placed in segregated settings with little to no access to general education peers and content. As noted by the National Council on Disability, although IDEA is the law of the land and should protect all students, opportunities for inclusion vary widely by region, state, and community. Advocacy, professional development and, when necessary, legal action are needed to make IDEA's inclusion presumption a reality for all students, no matter their zip code.
A heartbreaking number of students with disabilities are subject to restraints and seclusion. Professional development and additional legal safeguards, are needed to help support students with challenging behavior and protect them from harmful, violent, and counter-productive interventions.
Numerous studies have revealed racial and ethnic disparities in special education, including issues with identifying students in need of support, disparate student discipline, and disproportionate placement in restrictive settings. Better data tracking and more effective interventions are needed.
The current COVID crisis is impacting many students adversely, but students with disabilities may be most at risk. The law hasn't changed and students with disabilities remain entitled to a Free Appropriate Public Education with all of IDEA's procedural safeguard rights. Additional resources should be provided to promote effective remote learning, address attention/behavior challenges, support parents, and attend to students' social/emotional needs.
We have 45 years of progress to celebrate; but we're just getting started - our students deserve and demand it.