|
Background
The IDEA: The Individuals with Disabilities
Education Act (IDEA) guarantees all students "free
and appropriate" public education (FAPE).
IDEA protects the rights of children with disabilities,
including: mental retardation; speech or language
impairments; serious emotional disturbance; autism;
specific learning disabilities and other health
impairments.
National Trends
Overrepresentation and Segregation:
Nationwide, minority students are over represented
in special education programs indicating widespread
misdiagnosis. In many cases, separate special
education programs have the effect of increasing
segregation within a school. However, IDEA requires
that schools place students with disabilities
in regular classrooms to the extent appropriate.
If race, sex, or national origin are suspected
of either influencing a child’s placement,
or the level of services a child receives, complaints
may be made in court or filed with the United
States Department of Education.
What Does the Law Say?
Complaints About Racial and
National Origin Discrimination in Special Education:
Complaints under Title VI of the Civil Rights
Act of 1964 can be brought directly as lawsuits
in court or filed administratively with the United
States Department of Education’s Office
For Civil Rights (OCR). Organizations may have
standing to bring suit on the behalf of parents
and students in a given school district. In administrative
complaints, claimants alleging a disparate impact
on minorities may be able to prevail on proof
of discriminatory impact without having to prove
discriminatory intent.
Filing OCR Complaints:
A complaint of discrimination can be filed by
anyone, or any organization, believing that an
education institution that receives federal financial
assistance has discriminated against someone on
the basis of race, color, national origin, sex
, disability, or age. OCR has jurisdiction for
Title VI, Title IX of the Education Amendments
of 1972, Section 504 of the Rehabilitation Act
of 1973, and Title II of the Americans with Disabilities
Act of 1990. OCR complaints must be in writing,
cannot be anonymous, and must request intervention.
Generally, complaints must be filed within 180
days of the last act of alleged discrimination,
although a waiver may be granted. OCR does not
have jurisdiction for IDEA complaints.
General Complaints Under IDEA:
The IDEA provides parents with extensive procedural
rights. However, IDEA also requires exhaustion
of administrative process before a lawsuit may
be filed. Parents that disagree about what a school
has done, intends to do, or refuses to do, must
request a due process hearing, in writing, from
the school system. Parents have the right to challenge
any school decision affecting their child’s
education. Some state laws provide more rights,
but no state may take away rights afforded by
IDEA.
Misdiagnosis, IDEA and Title
VI: Under IDEA, parents may challenge any
diagnosis resulting in a "special education"
placement. A misdiagnosis of a minority student
may also be actionable as a civil rights violation
under Title VI. Frequently, bright minority students
with learning disabilities are misdiagnosed on
the basis of a test and assigned to remedial education
programs that do not provide needed services.
Similarly, national origin minority students with
limited-English proficiency are often placed in
special education programs based on tests given
in English.
Parents’ Rights:
Under the IDEA schools must ask parents’
permission to evaluate a child for special education
before any evaluation is done. Parents also have
the right to an outside evaluation. Parents must
be involved in all discussions and decisions about
placement including the process of developing
an individualized educational plan (IEP). Once
an IEP is in place, parents must be given notice
of any changes planned in a child’s educational
placement and are entitled to regular progress
reports.
IDEA Due Process Hearings:
Parents have the right to appeal any school decision
affecting their child’s education. A hearing
request must include 1) the child’s name,
home address, and school address; 2) a description
of the problem; and 3) the remedy sought. Mediation
opportunities must be made available, but may
not be used to delay or deny a request for a hearing.
If a parent wins at the due process hearing the
school district must pay the parent’s legal
fees. If parents lose they can request mediation
or appeal. The process for appeals varies from
state to state.
Discipline: A school system
must tell parents when it plans to discipline
a child on the same day the decision is made.
Students suspended for more than 10 days, or who
are expelled, are entitled to a full education
program without disruption. If the behavior that
led to the discipline is disability related, the
student has a right to a host of protective procedures.
Undiagnosed Children and
"Behavior" Problems: Some children
have behavioral disorders that are not protected
by IDEA. For example, children regarded as mildly
hyperactive are often denied support in school
and harshly disciplined as if they had no special
needs. Such children may have rights to extra
support in school and protection from certain
disciplinary procedures under either Sec. 504
or Title II.
|
