Your Child's Rights

August 31, 2004

YOUR CHILD’S RIGHTS

Last year, the school said that they didn’t have the money to pay for the assistive technology that Sammy needed. We wish we knew then what we know now, that Sammy has a right to a free and appropriate public education. –Simon, father of Sammy, age 6

Knowing your child’s educational rights is the foundation of educational advocacy. Those parents who learn the basics of federal laws affecting their child’s education are better positioned to help their children than those who do not. This doesn’t mean you have to memorize a lot of facts, but rather, understand how local school districts are bound by federal education law.

All children, including those with disabilities, have the right to receive a free and appropriate public education. All persons are entitled to equal protection, not just citizens. But that just means the state cannot discriminate arbitrarily. When applied to discrimination based on disability, the standard is not very strict—the discrimination just has to pass a “rational basis” test. Can the state articulate some rational basis for the discriminatory law or practice? It is much easier for the state to justify than discrimination based on race, for instance. That is why federal education law to protect the rights of the disabled was even necessary. It was not until the 1960’s that the federal government began to pass legislation ensuring that children with special needs could be appropriately educated.

ORIGINS
The federal government did not become directly involved in primary and secondary education until 1958, when the National Defense Education Act was passed to strengthen instruction in mathematics, science, and foreign languages. The bill was passed after the Soviet Union’s launch of the Sputnik satellite, when the quality of the American education became a matter of heightened and competitive concern. With the enactment of federal education law, states became required to meet the federal requirements for education along with their individual state requirements for the education of children.

IDEA : The Foundation of Education Law Today

“Most parents don’t have time to read about all these laws. But if there is one law that parents really need to know about, it is IDEA. I’ve learned that knowledge is power. I want to know everything I can, to help Daleesha get the education she needs.” –Keisha, mother of Daleesha, age 13

The Education for All Handicapped Children Act of 1975, the precursor to the individuals with Disabilities Education Act (IDEA), was a groundbreaking piece of legislation for parents of children with disabilities. It continues to be the foundation of special-education law today. This legislation, finalized in 1977, mandated a free and appropriate public education (FAPE) for all children with disabilities, established due process rights for parents and children, mandated the development of Individual Educational Program (IEP’s) and the placement of students in the Least Restricted Environment (LRE).

In 1983, services were established to facilitate school-to-work transition through research and demonstration programs, parent training and information centers. Funding was provided for demonstration projects and research in early intervention and early childhood special education programs. In 1986, these services for preschoolers were mandated and funding was provided to assist states in developing a comprehensive, multidisciplinary statewide system of early intervention services for infants.

IDEA (1990-2004)

IDEA 1990: In 1990, with the reauthorization and broadening of the Education for all Handicapped Children Act, the legislation was renamed the Individuals with Disabilities Education Act (IDEA). IDEA expanded the number of discretionary funding categories by adding the following: autism and traumatic brain injury, added assistive technology as a related service available through IEP’s, required IEP’s to include transition-to-work planning or transition plans for further schooling; and provided funds for development of disabilities programs for infants and toddlers.

IDEA 1997: IDEA 1997 clarified the definition of “child with a disability” and specified that children with Attention Deficit and Attention Deficit Hyperactivity Disorder may qualify for services under the “other health impairment” category. IDEA 1997 also strengthened the requirements for what must be included in an IEP and extended important discipline protections to children whose behavior is a manifestation of a child’s disability.

IDEA 2004: The U.S. Department of Education describes the 2004 reauthorization of IDEA as legislation that “strengthens academic expectations and accountability for the nation’s 6.3 million children with disabilities and bridges the gap that has too often existed between what children with disabilities learn and what is required in regular curriculum.” Among the more specific goals of the reauthorization were:

Ensuring access to the general education curriculum and innovative instructional methods to ensure academic growth
Focusing on teaching and learning while reducing unnecessary paperwork requirement
Creating stronger guidelines for identifying and placing children in special education classes and developing procedures to prevent the mislabeling of children of racial, ethnic and linguistic diversity
Ensuring that schools are safe and conducive to learning by allowing for the suspension and expulsion of students who bring weapons or drugs to school, or violate a student code of conduct.

“How to Use IDEA 2004 to Improve Your Child’s Special Education” – Wayne Steedman, Esq., Wrightslaw

504 VS IDEA
Section 504 or IDEA? What’s best for my child?

It depends on what your child’s need are, and in order to effectively advocate, it is important to understand the similarities and differences between the two laws.

Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits discrimination on the basis of disability in programs or activities that receive federal financial assistance from the U.S. Department of Education. It is designed to level the playing field by eliminating barriers and providing equal access to an education. Section 504 protects all people with a disability who:

Have a physical or mental disability which limits one or more major life activities
Have a record of such impairment, and
Are regarded as having such an impairment
Section 504 does not provide funding aid to schools even if they need to implement accommodation in order to insure non-discrimination. This is important to note in that there is less incentive for schools to qualify students under Section 504 as opposed to IDEA.

The Individuals with Disabilities Act (IDEA) goes beyond eliminating barriers by granting students additional services and requiring schools to do “more” for children who qualify under IDEA. Unlike section 504, schools are also eligible for additional funding from the Federal government. The eligibility requirements under IDEA are more stringent and specific with a narrower definition of what constitutes a disability.

Under IDEA, a child with a disability is defined as:

A child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities.

A visual comparison may be helpful:

Picture a circle representing all children in public education. Within that circle is a somewhat smaller one showing all children with a disability. Within that is a yet smaller circle of the children with disabilities who fall under the umbrella of Section 504. Then, within that is a smaller subset of children who qualify for services through IDEA.

For more information on Section 504, click on these links:

LD Online:  http://www.ldonline.org/ld_indepth/legal_legistlative/edlaw504.html

U.S. Department of Education, Office for Civil Rights   http://www.ed.gov/about/offices/list/ocr/504faq.html

NO CHILD LEFT BEHIND

I have heard about No Child Left Behind so many times, but wasn’t sure what it meant. It’s good to know all the details, but practically speaking, the important thing is understanding how NCLF impacts our local school district, my nephew’s school, and his education. –Thelma, custodial aunt to Bobby, age 9

When Congress reauthorized the Elementary and Secondary Education Act in 2001, the new legislation was the first major overhaul to the reform in 25 years. The reauthorization legislation was renaming the No Child Left Behind Act (NCLB). Current policy changes in our public school systems are being driven by the stipulations of this legislation. The movement towards corrective actions against local and state education authorities that do not meet the basic requirements of progress as defined by NCLB has forced many states to take legal action by challenging the constitutionality of the law. The basic premise of the law is to ensure that all students have access to educational material. However, the unfunded costs of this legislation have created an even greater divide between wealthy and poor school districts and states
There are 10 sections, called titles, comprising the bill.

TEN TITLES

Title I: Improving the Academic Achievement of the Disadvantaged ensures that all children have fair, equal and significant opportunity to obtain a high-quality education and reach at a minimum the state standards. This is to be achieved by requiring high-quality academic assessments, installing accountability systems, increasing focus on teacher preparation and training, and examining the educational needs of low-achieving schools serving economically disadvantaged students.

Title II: Preparing, Training and Recruiting High Quality Teachers and Principals provides grants to State Educational Authorities, (SEA) Local Educational Authorities (LEA), and state higher-education providers to improve teacher and principal quality through staff development.

Title III: Language Instruction of Limited English Proficient and Immigrant Students focuses on English language acquisition, language enhancement and academic achievement of the individual students.

Title IV: 21st Century Schools aims to ensure safe and drug-free schools, allocating monies for violence-prevention programs in and around schools, and for prevention of illegal use of alcohol, tobacco and drugs around schools. It provides early intervention services for students needing drug, alcohol and anger management treatment and who are unable to qualify for services through their insurance or state welfare programs.

Title V: Promoting Informed Parental Choice and Innovative Programs provides grant supports to local educational authorities to support state educational reforms, funding programs including an educational clearinghouse for gathering educational reforms and school improvement programs for educational researchers with special interest in class size reduction and reading readiness. This legislation also provides funding for library and media services for schools, and mandates the development of choice or charter schools and state and district report cards that enable parents to make informed school choices. Comprehensive and directed professional staff development programs are funded in order to improve teacher performance and student outcomes.

Title VI. Flexibility and Accountability provides grants to states to develop learning assessments and educational standards as well as funding to administer the state-mandated assessments.

Title VII. Indian, Native Hawaiian, Alaska Native Education provides funding to run reservation schools and to establish cultural training for educators working with native populations.

Title VIII. Impact Aid Program makes available additional grant funds to schools where more than 20% of the student population receives Aide to Families with Dependent Children (AFDC), and provides compensation to school districts that have military and government installations within their district boundaries.

Title IX. General Provisions defines the terms used in describing the components of NCLB.

Title X. Repeals, Redesignations, and Amendments to other Statutes includes the McKenny-Vento Homeless Education Assistance Improvement that guarantees homeless children equal access to the same free and public education as others, allowing them to remain in the school system they were in prior to losing their residence. This provision also provides for access to school services for children living in homeless shelters.

IMPORTANT RIGHTS

NCLB provides a number of rights for parents. These include:

Requesting Professional Training for Teachers – Parents have the right to request professional training for teachers in the area of a child’s disability to ensure that the teachers are able to meet the educational needs of the child.

Moving to a Safer School – Parents have the right to place a child in a school of their choice or to move the child out of a school if the child is a victim of a crime. If a child is at a school that is considered unsafe, parents can request that the child be moved to a safer school.

Nondisclosure to Military Recruiters – Parents have the right to request that personal information is not released to military recruiters.

Information about Your Child’s Teachers and Their Training – Parents have the right to be given information about their children’s teachers and their training and to be informed if their children are in classrooms with teachers who do not meet the highly qualified requirements under NCLB.

Yearly School Report Card – Parents have the right to receive information, in the form of a yearly report card, about their children’s school, how it compares with other schools in the area, and whether their children’s school is meeting the assessment standards of the state.

Supplemental Services Under Certain Conditions – Parents have the right to receive supplemental educational services for a child who has not passed the state-mandated tests two years in a row.

Additional Tutoring Under Certain Conditions – Parents have the right to receive additional tutoring services outside of the school for a child whose skills are lagging and who attends a school that is not making adequate yearly progress.

In many states and districts, despite these provisions, parents are faced with little or no alternatives within their school districts. Charter schools, as the only alternative for parents, further deplete the limited funds available to the public school district.

Children who are economically and educationally underprivileged, the very children that the original ESEA was attempting to assist, are the population most affected by and disenfranchised under NCLB legislation. Where all agree that the children of our nation have a right to a quality education and a right to qualified professionals as teachers within their classrooms, the underfunding of this legislation has further increased discrepancies between the wealthy and the poor in society.

The right to an education has been a great equalizer within this country. It has allowed individuals to improve their circumstances of birth by following the basic beliefs of the American dream: work hard, become educated, and follow your dreams. Yet, the gates of the schoolhouse are being locked around many at the very time that we need to be increasing the resources to educate children, our countries greatest resource. All U.S. citizens, including those with disabilities, have the right to a free and appropriate education.

DISCLAIMER
The Balanced Mind Foundation recommends that parents try to work collaboratively with their child’s school to address the child’s educational needs. However, there are times when parents and schools cannot agree concerning the programs and services a child needs. There may be many reasons why a parent’s advocacy efforts may not result in an appropriate education for the child. In those instances, The Balanced Mind Foundation strongly urges you to contact an attorney who is experienced in handling special education matters. The Balanced Mind Foundation does not recommend that a parent attempt to handle adversarial proceedings (such as due process hearings) without an attorney. This program is not intended to offer legal advice or detailed instruction in the law. The Balanced Mind Foundation does not offer legal advice and this program will not teach you how to act as your own attorney.

History of Education
http://fcis.oise.utoronto.ca/~daniel_schugurensky/

Elementary and Secondary Education Act
http://www.ed.gov/legislation/ESEA/sec1001.html

U.S. Department of Education on NCLB
http://www.ed.gov/policy/elsec/leg/esea02/index.html

No Child Left Behind
http://nea.org/esea

Education of All Handicapped Children Act
http://www.scn.org/~bk269/94-142.html

IDEA Practices
http://ideapractices.org/

Family Education Rights and Privacy Act
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Families and Advocate Partnership for Education
http://fape.org/

National Dissemination Center for Children with Disabilities
http://nichcy.org/

Last updated: July 18, 2011

The Balanced Mind Foundation

Your Child's Rights