Understanding special education laws and rights

A parent's guide to the many layers of special education law.

By Jan Baumel, M.S.

You've read your copy of "Rights and Responsibilities in Special Education," talked to other parents, and even looked up information on the Internet. You think that you have a pretty good understanding of what your child's entitled to, but when you talk to the special education administrator, he tells you something different.

You feel like the public school's not making enough effort to help your child. How do you know what you can realistically expect? How do you get what you want for your child?

Laws and regulations

Part of what makes everything so confusing is the way the legal process works. First, Congress passes a law. For example, the Individuals With Disabilities Education Act (IDEA) was most recently reauthorized in 2004. At that time, several substantive changes were made in the law.

Next, the U.S. Department of Education writes regulations to help explain the law. The public was asked to give input, and a lengthy process followed. The regulations for IDEA 2004 are expected to finally become part of the federal code and made available in late 2006 — two years after the law passed.

Meanwhile, each state has to make sure its laws are in compliance with federal law. This means that new laws had to be passed by state legislators in order to be in compliance with IDEA. While states must offer at least what the federal government requires, they may choose to provide more.

After laws are passed in each state, the respective Department of Education develops its regulations that give more information about the law. So now we have state regulations as well.

The parents' rights and responsibilities you receive apply specifically to your state. Sometimes they include more than the federal government requires, but never any less. Your state may actually provide more for your child than a neighboring state or the federal government.

For example, federal law requires services until the age of 21 for eligible adults — those who haven't graduated from or otherwise completed high school. Most states explain what 21 means and when services will cease. But the state of Michigan has chosen to make services available to eligible students until the age of 26.

So if you move from one state to another, you may find services to be different. But wait, there's more.

The courts

If there's disagreement over the outcome of a fair hearing, part of due process procedures, you or the school district may appeal to a state or federal court. When the court interprets the law and makes its decision, it sets a precedent for future cases.

And this is often where issues become complicated. You may also need to know about court decisions that affect your state or the states included in your federal court circuit. Sometimes cases have gone all the way to the U.S. Supreme Court, and those rulings apply to all of the states.

What it means

There may be a breakdown in communication between you and the school because of differing information about all the laws, regulations, and relevant case law affecting special education. In some cases, you may have more knowledge than the educator, but it's also possible that you have only parts of the information.

For example, you may have heard about a certain method of teaching that sounds great for your child. And when you went to school and asked to have that method used, the school said no. What you may not know is that the Supreme Court decided that the choice of teaching methodology is up to the schools. To pursue this issue, you'd probably have to go through the legal process, considering all the facts of your individual case, to prove that the school's methods resulted in minimal or no progress for your child. Then you may be able to pick a specific method of teaching.

There's no "cure" for learning disabilities (LD), so kids often struggle throughout school and progress at a different rate from their peers. The effect of a learning disability on a child's rate of learning, coupled with high parental expectations, can cause a strain on home-school relationships. As a parent, you want the best for your child and that may lead to disagreement over what free appropriate public education (FAPE) means. The courts have said that a child must receive "some benefit" from his education, but schools don't have to maximize your child's potential. (That's what's meant when you hear that the schools have to provide "a Chevrolet not a Cadillac" education.)

Communication with schools

It's really important to keep the lines of communication open. Since your child may have a few more years to go in the system, or you have other kids who go to the same school, it's crucial to maintain a positive relationship with school personnel. Let the school know you want to work in partnership with them. Remember that you have responsibilities as well as rights.

When your child reaches the age of 18, rights will transfer to him. So he needs to be included in discussions as much as possible to understand his rights and responsibilities before he becomes 18.

Support and assistance

To fully understand your rights, you may need to get more information.

Due process procedures

If you feel that you're at an impasse with the school, seek out mediation as a "win-win" strategy. You and the school may each have to give a little, but you'll keep control of what's decided. In a fair hearing, you and the school district each present your side of the story, but the final decision is made by a hearing officer on points of law.

More about rights and responsibilities

Learn more about parent's rights that are granted through federal law.

For more information about the process of mediation, see the following: "Special Education Mediation: A Guide for Parents (English)" or "Special Education Mediation: A Guide for Parents (Spanish)."

Reviewed February 2010

Jan Baumel, M.S., Licensed Educational Psychologist, spent 35 years in education as a teacher, school psychologist, and special education administrator before joining Schwab Learning. Today she is a consultant to local school districts and university field supervisor for student teachers.