Raising a special needs child may be challenging when it comes to their education. In some cases, it may be difficult to determine a child’s particular needs.
In addition, their needs will likely change throughout their educational development. A parent may need somewhere to turn in order to ensure that their child receives the best possible education that fosters their intellectual growth.
Because of these issues, the federal government created the Individuals with Disabilities Education Act (IDEA) to provide rights to children who have disabilities. This law provides parents with special needs children with the means to obtain an appropriate education and mental development for their children.
This act also provides parents with the means to fight against any unfair treatment of their children.
What are Some Important Features of the IDEA?
The IDEA provides students who have learning disabilities with free access to education. It applies to school aged children, toddlers, and babies.
Pursuant to the IDEA, there are a wide range of disabilities that qualify, including the following categories of disabilities:
- Hearing;
- Speech;
- Visual impairment;
- Autism;
- Mental retardation;
- Emotional disturbances; and
- Orthopedic impairment.
The IDEA outlines mechanisms for parents and schools to work together in order to determine each individual child’s specific needs. Every public school is required to have an Individualized Education Program (IEP) for special needs children.
When a special needs child intends to enroll in the public school, their parents, teachers, and other designated staff will be required to meet to determine the parameters of the child’s IEP for the year. It is important to note that what goes into an IEP may vary by jurisdiction.
Because of this, it is important for parents to discuss the contents with the school prior to beginning the process. The IEP will be reviewed each year and may be changed at any time if the school and parents agree.
For example if the student is excelling in a math class that is being taught in a special education setting, the parents and school may agree to integrate the student into a general curriculum math class for the rest of the year. Children with special needs are entitled to a re-evaluation once every three years in order to determine if they still qualify for the program or if they have any changing educational needs.
Are the Rules for Student Discipline Different for Disabled Students?
In the case of minor disciplinary measures, students with disabilities are generally treated the same as other students. This includes disciplines such as:
- Time-outs;
- Detentions; and
- Short-term suspensions, those lasting less than 10 days.
In cases of long-term suspension or expulsion, however, a disabled student is offered more protections.
How are Students in Special Education Treated Differently in Expulsion Cases?
Students in special education are offered greater protections, as noted above, under the IDEA in order to keep them in school. Some of these protective measures include:
- The student’s Individualized Education Plan (IEP) must address any behavioral issues that may affect their education as well as include alternative ways to handle these problems aside from the standard disciplinary measures of suspension and expulsion;
- The school must also prepare a Functional Behavioral Assessment (FBA) that evaluates when the student’s behavior problems are most likely to occur, what environment the behavior is likely to occur in, and why the behavior occurs. The school is then required to prepare a behavioral intervention plan that addresses the behavior issues and implements ways of dealing with them;
- If a student with a disability faces a long-term suspension that is greater than 10 days or expulsion, the school must first hold an IEP meeting before making a decision to suspend or expel the student; and
- The law ensures that even if a student with a disability is suspended or expelled from a school, they will still have access to free and appropriate public education.
Are There Any Exceptions to These Protections?
Yes, there are exceptions to the protections provided under the IDEA. Situations in which a school may impose a change in a student’s placement, such as long-term suspension or expulsion, without a parent’s consent include:
- The student uses, sells, or solicits illegal drugs at school or during school activities;
- The student brings a weapon to school;
- The student’s behavior was in no way caused by or related to their disability, which must be determined by the IEP team; and
- The district requests a due process hearing and proves by substantial evidence that the student is a threat to themselves or others.
What if a Disabled Student is not in Special Education?
If a student has not yet been found eligible to be in special education, they may be eligible for special protections if the school had knowledge of the student’s disability prior to the incident taking place.
How are Special Education Disputes Handled?
If an individual has a special education child and they feel that the school is not appropriately meeting their child’s needs, there may be legal resources available. Examples of ways a special needs child’s rights may be violated include:
- The school failed to implement an appropriate IEP;
- The school failed to allow the child into their special education program;
- The school failed to hire teachers that were qualified; and
- The child was the subject of unfair treatment at the school.
An individual should first speak to the designated contacts at the school and attempt to remedy any issues. If this does not work, the individual has legal resources available.
Before an individual is permitted to pursue litigation, however, they are required to file an IDEA claim with the appropriate state agency. It is important to note that every state handles IDEA claims in different manners.
An individual should contact their state agency or consult with a local education attorney to determine what should be included in an individual’s IDEA complaint. If required information is not included in the individual’s claim, it will be dismissed.
The state agency will conduct an investigation to determine whether or not the school violated any aspects of the IDEA. This includes interviewing each side and requesting further documentation in order to determine if the proper steps were taken in the case.
It is likely that the state agency will attempt to get the parties to reach a settlement. The agency may find in the parent’s favor and directly order the school to comply with the law.
If, however, the agency finds in the school’s favor, the individual will still be able to file a civil lawsuit. It is important to note that there are deadlines for all of these actions that may vary by state.
Whether an individual is filing an IDEA claim or a lawsuit, it is important to provide as much detail as possible. This includes keeping any correspondences related to the claim, such as:
- Notes;
- Text messages;
- Letters;
- Emails; and
- Any other correspondence.
Should I Contact a Lawyer?
If you have questions regarding how a disciplinary procedure may apply to your student with disabilities, it may be helpful to consult with a government attorney.
Your attorney will be able to example your rights as well as your child’s rights under IDEA. Your lawyer will also guide you through any administrative procedures that may be necessary to protect your rights as well as your child’s rights.
