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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.)

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.

Comments from GreatSchools.org readers

08/29/2011:
"The best thing a parent can do, when all else fails and you are literally pulling your hair out, is hire an education advocate. I did this and it was the best money I ever spent. She got a 504 in place and it made a big difference. Don't fight the battle on your own, the schools do NOT respect the parents. They do however, respect the law, especially when it's tied to federal dollars. Sad, isn't it? "
08/29/2011:
"Before I found an excellent charter school for my son, I also tried "to keep the lines of communication open". The problem is, it's usually a one sided affair where the schools are communicating to you what THEY want and not listening to the parent(s). Expressing any opinion that does not fit their agenda, criteria, mission plan etc etc, puts you in an adversarial relationship. I know this from experience. I finally got an eduction advocate to fight the battle more effectively since that's one person the schools DO listen to (since the advocate can quote them law....) My son now goes to a school which puts the students' success first and respects the opinions and input of parents. Gee, what a concept. "
03/22/2011:
"The schools dont give our children a chance my son is suffering from suicide thoughts and depression he has never hurt anyone he just feels that the schools teachers and the staff,dont care if he makes it or not as of Feb 22,11 my son turned 18 the school is telling him that its best to sign a document of paper work withdrawing him out of school , my son dont want his GED his not ready to go out there in to the world.I hav failed my son dont know what to do. he has never been in trouble with the law or in fights never been physical or violent with anyone. He just want an education a chance. what is a mother to I hav tryed everything hav talked to schools the law they tell me that its better for him to get GED :( WHY ?"
02/16/2011:
"The school my son attends talk about disabled children, i have heard them as i was there, also there are some great teachers, but some that need to look at the way they are teaching are youth, my son has ADHD,and instead of giving positive feed back, the Pricnpal, is very negative, she should try and teach, children how to get along and resolve these issuies, instead of giving 1 child suspension, and not the other child even though he hit my child first, the schools need to be , teachers and the staff, and the Pricapal let the parents decide,who stays and who goes'"
11/29/2010:
"So what your saying is that the school has all the rights and we have very little unless we threaten them with a law suit. I'm sorry, but you are leaving no hope for the parents. Your saying that we have to work with the school's ideas and the only way we could get our parents views considered is if we flatter the staff at the schools. What ever happened to accountablity? The only way in this world to get people to pay attention is to sue????"
10/25/2010:
"Help, my autistic daughter is 17 and is a senior in high school. I just learned today that it's up to special education coordinator if she is allowed to stay in school until age 21. Is this true. Is she being punished because me as a parent pushed her to do her work and keep up best as possible with her class? "
09/30/2008:
"Help, Everything I have read applies to my son Cameron and His education. I will have to spend more time to research this website. He is in 4th grade, and I feel like we are running out of time to debate and make things more difficult with the school. He is 9 and has the learning capasity of a 5 or 6 year old. This has always been a challenge. I am concerned that I don't know what to expect of the IEP. I don't know what is too much to ask, as for years I have been just signing them and not noticing any major progress. Our IEP is on October 21st for His 3 year review, and I want to be prepared. Thanks, Jenny"
08/20/2007:
"What everyone fails to recognize is that this isn't about parents demanding the best. It is about school district's failing to fulfill their responsibilities to provide LD student's with an individualized plan according to their specific needs. Instead, they provide placement according to their generic offerings. When parents exercise their rights or concerns, like the parent in the pervious posting and thousands of others just like her, the battle ensues. The Findings and Purposes in IDEA 2004 are to establish a Higher Standard for a Free, Appropriate Public Education. When the U. S. Supreme Court issued the first decision in Board of Education v. Rowley, in 1982, the standard that school districts did not have to provide the “best” education for disabled students was set. Giving birth to the Cadillac v. Chevrolet comparison (which also needs updating). Congress has now found that “30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by having high expectations.” In order to meet developmental goals and grow to be independent adults and contributing members of society, “to the maximum extent possible” is necessary. The bar has now been raised! This, is now the new legal standard for a free appropriate public education. So, it's no longer about parents wanting the best or their emotional expectations. It's about the school district's responsibility and accountability to adhere to federal mandates. These children have been victim to low expectations for long enough. Everyone is quick to take a stand for civil rights in all areas but this one and it's high time things change. It's pretty pathetic that some US states, including California, base future prison population needs on the results of fourth grade reading assessments. Bureaucrats know if a child is not reading proficiently in fourth grade that he/she will not be reading at the end of high school. The early years are crucial and when the most significant damage occurs. This is what fuels parents passions when dealing with SD's. Where are the State Departments of education when these discussions take place? Just think how different all our futures would be if They would just create better schools and offer appropriate programs, instead of just building another prison. And the truth is, we're all responsible to make a change, not just parents of sped kids."
08/9/2007:
"hello i have a son that is bipolor , adhd and has a bowel problem most of the schools he has been in would not take him they would put him on a home bound program and the hours they would give the people who taught him were only 5 hrs a week . i feel that he is not learning anything by doing it this way what is the standard amount of hrs a child needs to learn or is there even a way that he can be a part of the school and be able to particapate like other kids he is in the 5th grade and just barely knows how to read and can only print i am now trying to teach him is multiplication tables which he knows from 1 to 5 but i want him to learn more . right now he feels like he will never have a chance to be in school no matter how hard he trys . can you please give me your input on this thank you . or would it be best for me to just home school him myself and get him the education he needs to get . "
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