Special Education Rights in Schools

December 1, 2022By: Pedro Olvera, PhD

On December 2, 2022, we celebrate Special Education Day. This particular day recognizes that education is a human right for all individuals. President Gerald Ford signed The Education for All Handicapped Children Act (EHA) of 1975 or Public Law 94-142 in 1975. This law was monumental because it gave special needs students and their families rights within the public school system. As will be discussed in this blog, without these special education rights, students with disabilities had difficulties accessing appropriate education and learning alongside their peers in K-12 schools.

Special Education Day serves as a reminder that all students, regardless of their intellectual, physical, or social-emotional abilities, have the right to an education that will give them the skills to succeed. Read on to learn more about the rights special education students have in schools.

What Is The EHA & IDEA Act?

The Educational for All Handicapped Children Act (EHA) guarantees all children, regardless of disabilities, the following:

  • A free and appropriate public education (FAPE) and related services designed to meet their unique educational needs
  • Assurances of special education rights for them and their families
  • Financial assistance to each state to educate children with disabilities
  • Continual assessment of the quality and effectiveness of educating children with special needs. The EHA was reauthorized in 1990 and became known as the Individuals with Disabilities Education Act (IDEA), with further revisions in 1997, 2004, 2006, 2008, 2011, 2013, 2015, 2016, and 2017

As it stands today, the Individuals with Disabilities Education Act (IDEA) provides FAPE for students with the following qualifying disabilities:

  • Autism
  • Deaf-Blindness
  • Deafness
  • Emotional Disturbance
  • Hearing Impairment
  • Multiple Disabilities
  • Orthopedic Impairment
  • Other Health Impairments (including Attention Deficit Hyperactive Disorder)
  • Specific Learning Disability
  • Speech or Language Impairment
  • Traumatic Brain Injury
  • Visual Impairment including Blindness

If students with the above conditions have difficulties accessing their academic curriculum, they may be eligible for an Individual Education Plan, also known as an IEP.

The Rights of Special Education Students

Free and Appropriate Public Education (FAPE)

One of the key provisions of IDEA is the right to a Free and Appropriate Public Education (FAPE). FAPE can include but is not limited to, education in regular or self-contained classes, and access to related services (i.e., speech and language, occupational, physical therapies, etc.). Additional guarantees include education to the maximum extent with nondisabled peers, nondiscriminatory assessments (identification and reevaluation), parental input, and due process rights at no cost to the parents. The FAPE provision is accessible in all states and must be made available for all children with disabilities that require specialized academic instruction and related services.

The Americans with Disabilities Act (ADA)

President H.W. Bush signed the Americans with Disabilities Act (ADA) into law in 1990. The ADA is a broad civil rights law that prohibits discrimination against individuals with disabilities in the various sectors of public life, including but not limited to jobs, schools, transportation, and all public and private places open to the general public.

The ADA’s intent is to ensure that people with disabilities have the same rights and opportunities as those that are not disabled. The ADA built upon a previous law known as Section 504 of the Rehabilitation Act of 1973, which provided protections for individuals from discrimination based on their disability in programs that receive federal funding, including public schools. This section of the ADA covers individuals with qualifying disabilities such as physical or mental impairments that substantially limit one or more major life activities, a person who has a history or record of such an impairment, or an individual perceived by others as having such an impairment. Thus, within schools, individuals with Attention Deficit Hyperactivity (ADHD) can qualify for such protections and accommodations. 

Least Restrictive Environment (LRE)

The Least Restrictive Environment (LRE), also known as mainstreaming or inclusion, refers to the degree to which students with disabilities are educated in classrooms with nondisabled peers to the maximum extent possible. It goes without saying that each child’s individual needs will differ, and thus LRE should be decided on a case-by-case basis. Therefore, IEP teams should always strive to ensure that children with disabilities are included with nondisabled peers in those subjects and extracurricular activities in which they will gain educational benefits.

Reasonable Accommodations 

Under IDEA, ADA, and Section 504, children with disabilities are entitled to reasonable accommodations, which are adaptations or changes to the educational environment or practices which will allow the child access to the assignment. It’s important to note that accommodations do not alter or change the assignment; they provide reasonable support to help the child fulfill an assignment as a student without disabilities. Examples of reasonable accommodations include but are not limited to extra time to complete tasks or tests, recording of lectures, audiobooks, large print materials, or help with note-taking. 

Informed Consent 

As mentioned above, an essential provision of FAPE is that parents are afforded the right to participate in their child’s education. An important part of this participation is the parent or other educational rights holder the authority to provide informed consent before any special education-related evaluation (initial or reevaluation) and/or provision of specialized academic instruction and related services (i.e., language and speech, occupational therapy, counseling, etc.). IEP teams should also ensure that parents have provided information regarding assessments or related services to the parent in their native language or other modes of communication and that the parents have had the opportunity to ask any questions. 

Stay Put 

At times, parents may disagree when the IEP team proposes to remove or change a particular service outlined in the student’s IEP. Usually, these changes are outlined in a document called a Prior Written Notice (PWN). When such a disagreement occurs, the child is afforded the right to “stay put,” meaning that the service or placement in dispute will continue until the disagreement is resolved.

The stay-put law applies not only to a classroom placement but to related services like counseling or speech and language. It is not unusual for disagreements to take weeks or months to resolve. Thus, this law ensures that the child will continue to receive a needed service so that there will not be an interruption in the services essential to gain educational benefit.  

Final Thoughts

As we celebrate Special Education Day, we must recognize that education is a human right for all individuals regardless of race, ethnicity, or disability. The IDEA, ADA, and Section 504 is in place to ensure that children with disability can participate and have the same opportunities and experiences as non-disabled peers. 

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