Journal Edition: Temporary First Post

Every year, federal and district courts render new interpretations of IDEA and Section 504 directly affecting school district personnel, agency representatives, advocates, and parents or guardians of children with disabilities. For example, there have been thousands of due process hearings requested across the nation and the number has increased. The IDEA has a multi-step process to reduce contentiousness in due process proceedings. Participants who understand litigation related to individuals with disabilities in education, the policies, and procedures may deal more effectively with the complex issues involved in resolving disputes and in providing an appropriate public education to students with disabilities. Although the IDEA is due for reauthorization, thus, posing continuing challenges in revising, interpreting, and applying federal mandates, there is still a need for an up-to-date, relevant and practical resource focusing on pertinent issues facing those involved directly in litigation and policies related to the education of PK-20 students with disabilities.

Rationale

The Journal of Disability Law and Policy in Education  is dedicated to the following: 

1. Special education due process relevant case law and the implications for educators.
2. Section 504 relevant case law and the implications for educators.
3. ADA relevant case law and the implications for educators.
4. Disability related legislation and regulations and the implications for educators.

There are many key issues facing those who deal with implementing the requirements of the IDEA. For example, education personnel need to know the rights afforded to parents by the IDEA, the rights afforded to the district, the obligations of the parents and of the district, the process itself, how to prepare for a hearing, what is involved, what is expected at the hearing, and what happens when the hearing is over. Many need information on ways to ensure compliance with significant aspects of the IDEA.

Further, the role of the parents in their child’s education has rightfully increased. This, in addition to parents spending time on the internet looking for solutions and programming for their child(ren), a rise in law forms that solely represent parents, and two recent Supreme Court decisions have dramatically changed the litigation landscape related to special education and students with disabilities. Understanding the role of litigation related to disabilities in education may very well assist districts in presenting information as accurately as possible that will ensure an appropriate education for students with disabilities. In turn, parents who are cognizant of disability litigation will enhance their own roles in identifications, evaluations or re-evaluations, independent educational evaluations, IEP team meetings and updates, meaningful educational progress, and student discipline, and may be more inclined to support school district efforts in resolving disputes.

A major component of the IDEA as a result of the Endrew F. decision is the emphasis on students with disabilities making appropriate progress. Today, discussions about how to provide equity in making progress in the curriculum, how to achieve compatibility between equity and high standards, and what constitutes meaningful progress are commonplace and serve to focus attention on the performance of all students eligible for social education. Endrew F. and the accompanying FAQ statement from the U.S. Department of Education have focused attention-as well as compliance requirements-squarely on progress (U.S. Department of Education, 2017). Appropriate progress is now a major issue in special education litigation. Along with this, the IDEA underscores increased performance for students with disabilities and is becoming directly associated with students' access to the general education curricula and students’ participation in statewide assessments of learning. It has become very clear all educators now need to be accountable for students’ learning.

School districts and parents seeking due process often address a lack of progress as a point of contention. The IEP’s present levels of academic achievement and functional performance statement, annual goals, benchmarks or short-term objectives, and participation in statewide and district wide assessments typically underscore arguments between parents and districts. The parties’ positions often center on how much progress a student’s is expected to make and whether the disability effects involvement through the general education curriculum. Other issues focus on whether or not the IEP annual goals and benchmarks or short-term objectives reflect general education curriculum standards, or the clarification of what the district knew, or should have known, about problems the student was having, and how parents will be regularly informed of their child's progress. 

There is also much to learn from special education litigation that will hopefully change programming for other students and prevent future problems. Due process hearings can be requested by both parties on issues relating to identification, evaluation, placement or provision of a free appropriate public education. If parents and teachers are involved in a due process hearing, most only have one experience with the process. However, the ability to present the appropriate information during their one experience with the process is critical. There are some administrators who go through due process hearings more frequently, however, it is still (luckily) not a regular occurrence for most. 

There is also a dearth of information related to Section 504. In many states practitioners and parents are unaware of who has responsibility for overseeing implementation, training, and enforcement. There is also a lack of information at the school district level about the differences between Section 504 and IDEA eligible students and who has responsibilities.

Additionally, many individuals are unprepared for the legalistic language that is a part of the litigation process for students with disabilities. There are incredibly important terms such as 10-day letter, Five-Day Disclosure Letter, exhibits, subpoenas, objections, hearsay, and ex parte communications, which are not a part of the everyday language of many education professionals. This in addition to the fact the district may still have to be providing special education services for the student while the litigation is underway, with professionalism and credentials being questioned during the process. Finally, many who come to a hearing are not prepared for the emotional aspects and the sheer amount of details that might be covered. For many, it is not a frequent experience; however, it is clearly one of the most important.