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 12. Rights of Students With Disabilities

Educating all students, including those with disabilities, is the primary responsibility of local boards of education and the superintendents and administrators employed by them. As most school administrators and board members know, the educational and legal issues involved in providing that education to students with disabilities are increasingly complex and the cost involved continues to escalate. The legal rights of students with disabilities and their parents are contained in a complex morass of laws, regulations, rules, agency interpretations and administrative and court decisions. Challenges to the educational decisions of school districts for students with disabilities are proliferating at an alarming rate. Disability law is probably the fastest growing area of school law, requiring more and more attention from school administrators, local boards of education and their attorneys.

The development of the law defining the legal rights of children with disabilities began in the early 1970’s with court cases which required certain procedures to be followed by school districts in an effort to provide the same educational access to children with disabilities as was provided to non-disabled students.1 Following these early cases, Congress adopted in 1975 the Education for All Handicapped Children Act (EAHCA), known commonly among educators as Public Law 94-142. In 1990, when reauthorized, the Act was renamed the Individuals with Disabilities Education Act (IDEA). The current version of IDEA was reauthorized in 2004.  The IDEA requires the United States Department of Education to develop extensive federal regulations to implement its provisions. Moreover, each state is required to have a plan approved by the federal Department of Education setting out how the IDEA’s provisions will be implemented in that state. The Georgia legislature has enacted some statutes specifically dealing with special education and the State Board of Education has adopted comprehensive rules applicable to local school districts which impose additional procedural and substantive requirements for the education of children with disabilities.

It is not possible in a single chapter, and no attempt will be made here, to review all of the rules, regulations, administrative decisions, opinions and holdings of the various courts which interpret or apply the IDEA. The intent of this chapter is to highlight several of the significant requirements of the law with which board members and superintendents must be familiar. The practice of educating children with disabilities is replete with acronyms. In addition to IDEA, board members will encounter FAPE, IEP, SST, RTI, LRE, SLD, OHI, MID, EBD and a host of other references that further obscure an easy understanding of this area of school law. This chapter will attempt to provide some limited guidance for those seeking an understanding of the basic concepts of the rights of children with disabilities. In addition to IDEA, this chapter will review briefly the provisions of two other acts of Congress which prohibit discrimination against students with disabilities: Section 504 of the Rehabilitation Act of 19732 and the Americans with Disabilities Act.3

1. Mills V. Board of Education of District of Columbia, 348 F. Supp 866 (D.D.C. 1972)
2. 29 U.S.C. § 794
3. 42 U.S.C. § 12101
12. 1 Who is a child with a disability protected against discrimination by Section 504?
12. 2 Which students with disabilities are eligible for special education under IDEA?
12. 3 What are the other major differences between Section 504 and IDEA?
12. 4 How does a school district identify or find students with disabilities who may be entitled to special education?
12. 5 What is the responsibility of a school district to evaluate a child with disabilities to determine whether there is a need for special education services?
12. 6 Once the evaluation is completed, how are the results communicated to the parents?
12. 7 If the parents are dissatisfied with the results of the school district’s evaluation, may they obtain a private evaluation at the expense of the school district?
12. 8 What is an individualized education program?
12. 9 Who is required to attend an IEP meeting?
12. 10 What is the test for determining whether the school district has complied with the requirements of the IDEA for a student entitled to special education?
12. 11 What constitutes a free, appropriate public education?
12. 12 What is meant by the term “least restrictive environment?"
12. 13 What are “related services” and what is the school district’s responsibility to provide them?
12. 14 What if a student is in need of services which would normally be provided by a nurse to care for health problems?
12. 15 What must be included in an IEP to provide for a student with behavioral problems which need special attention?
12. 16 How does an IEP team develop a behavior intervention plan?
12. 17 What discipline options are available to a school district to deal with a student with disabilities whose conduct is not related to his or her disabilities?
12. 17.a When must a manifestation determination be conducted?
12. 17.b How are the school district’s options different if a special education student inflicts serious bodily injury or brings a weapon or drugs to school?
12. 17.c What happens if a parent requests an initial evaluation of a child for special education services in the middle of a disciplinary proceeding?
12. 18 Must the district provide an extended school year for special education students?
12. 19 Are there occasions when the school district may be required to reimburse the parents for the cost of educating their child in a private school or residential facility or to provide an education in a private facility?
12. 20 What happens if the parents and school district personnel are unable to agree during an IEP meeting as to the services to be provided by the school district?
12. 21 When the parties disagree, is there any alternative to a due process hearing?
12. 22 What happens in a due process hearing?
12. 23 What is the status of the child when a hearing has been requested?
12. 24 May a dissatisfied party to a due process hearing appeal the ALJ’s decision?
12. 25 Must the district pay the attorneys fees and expenses of the parents in a contested hearing or appeal?
12. 26 What can a local board of education do to reduce the risk of contentious challenges to school district programs and expensive litigation which may result?
12. 27 Must a school district provide special education and related services to students enrolled in private schools or home study programs?
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