Learning and the Law

Knowing the basics will ensure the lawful, effective delivery of special education.
By Mark Paige
Principal, January/February 2020. Volume 99, Number 3.

As a building leader, you have a lot of responsibilities. You oversee the safety of your students, staff, and community. You make important personnel and curriculum decisions. Some of your decisions are discretionary and require professional judgment, but many—as you know—are guided by the law.

Below are a few thoughts about special education law that might reduce your risk and, most importantly, make sure your students with disabilities—and all of your students, for that matter—receive the education to which they are entitled. This is by no means an all-encompassing examination, so I’ll focus on three areas: eligibility, Individual Education Plan (IEP) development, and special education as it relates to homeless children. The first two are common issues in your practice; the third is, unfortunately, one that deserves more attention.

My approach is straightforward: I will state an important “rule” about the aforementioned areas and provide some context and practical tips associated with that rule, drawing from cases, real examples, and my own experience in working with schools. This is not legal advice; every case is different.

Eligibility

Rule: To be a qualifying student under special education law, a student must have a qualifying disability and, because of that, require special education and related services.

To be eligible for special education under the Individuals with Disabilities Education Act (IDEA), the student must have at least one of the 13 identified disabilities recognized under the law (including intellectual disability, deafness, other health impairments, a specific learning disability, and speech or language impairment) that “adversely affects educational performance” and, “by reason thereof, [need] special education and related services.”

As principal, you should:

Assess eligibility based on each required “prong.” Parents or advocates might arrive to school armed with a diagnosis and demand a right to special education, but that’s not enough. The disability must be one of those identified under the statute, and it must “adversely affect educational performance.” As a principal, you—and your special education case managers—should not interpret disability so narrowly as to include only a consideration of traditional academic performance. There are many cases in which a school did not consider the disability’s impact on social or emotional needs to its own peril. Interpret the term “educational performance” broadly, and consult how that term is used in your state or jurisdiction.

Know building-level data about who is identified as eligible. As a principal, you should be especially aware of who—in terms of race, ethnicity, etc.—is determined eligible for special education. There are reporting requirements associated with the identification and discipline of students with disabilities, and the goal of the law is to prevent the disproportionate identification of certain student groups. If your numbers are out of whack, it should be a flag for further investigation into your building’s special education practices.

IEP Development

Rule: The IEP is a “written statement for a child” that is developed, reviewed, and revised according to certain procedures,” according to IDEA and the U.S. Supreme Court decision in Endrew F. v. Douglas County School District. It is “reasonably calculated to enable a child to make some educational progress in light of their circumstances.”

Most schools have a form that aligns with the required sections of an IEP, so you don’t have to worry much about ensuring all of the necessary elements are there. That makes things easy, right? Not so fast: That sort of “chug-and-plug” mentality can occasionally corrupt the IEP process, as the 2017 Endrew F. v. Douglas County School District decision shows.

Here’s a brief summary of the case: Endrew’s parents removed their child from public school and placed him in a private school. They believed that the district was replicating the same IEP goals from year to year, with no discernible progress made. The private school, Firefly, added specific behavioral interventions and more robust academic goals to Endrew’s plan. Endrew responded and demonstrated considerable success at Firefly.

Endrew’s parents met again with the school district to develop a new IEP that might lead to his returning to public school. Naturally, Endrew’s parents believed that some of the modifications and interventions that proved successful at Firefly should be included in a new IEP. But in their view, the proposed public school IEP did not differ from the one that prompted them to enroll in Firefly in the first place. They sought and won reimbursement for their Firefly tuition.

To avoid a situation like this:

Meaningfully include parents’ input and information about the child. The development of the IEP should use a team-centered approach, must consider parental input, and must consider the uniqueness of every child, not just as a matter of good practice—as a requirement. The IEP should also consider measures of success. Bottom line? Consider parental and outside input, be aware of material changes that benefit the child’s progress, and avoid developing IEPs with a “rote” mentality.

Make discussion of placement one of the last pieces of the conversation. The emphasis is on the least restrictive environment, and the law presumes that the regular classroom is the least restrictive. You will find that some parents and advocates begin a special education discussion with a presumption of placement, and that presumption might be correct. But the point is that placement discussions should occur at the end of IEP development, once you see what’s required for the child in question. The best school principals with whom I have worked are skilled at repositioning the conversation when it begins with placement.

Homeless Children

Rule: Homeless students are defined under the McKinney-Vento Act as those “not in the physical custody of a parent or guardian” or who lack “fixed, regular, and adequate nighttime residence.” Special education laws apply to these students.

Rates of homelessness vary widely by state and location, but this much is certain: The impact on an individual child’s health, well-being, and education is significant. Schools are often the most stable environment for these students. For school leaders and educators, the transient nature of homelessness presents challenges to addressing student needs, especially in special education.

For homeless students who travel between districts, the question of what school or district is responsible for a particular student’s special education needs often arises. These are case-by-case determinations, but you should know that McKinney-Vento presumes that the “school of origin” is responsible for special education, and it is defined as “the school the student attended when permanently housed or the school in which the student was last enrolled.”

To manage homeless students’ education appropriately, begin with the following:

Consider expediting special education processes for students who are homeless. There are timelines associated with almost every aspect of special education, including evaluation. You can attempt to expedite those timelines—consulting the rules concerning consent and other issues—to the benefit of the child, especially given the transient nature of his or her circumstances.

Keep in close contact with the liaison or school personnel, who (should) have a thorough understanding of McKinney-Vento. As principal, you can’t be expected to know this law “cold.” But you should know when McKinney-Vento is at issue and seek advice from those who know the rules already.

The development of a special education program is a collaborative effort, and when a collaborative culture is part of a school, it reduces your risk of landing the school in court. I’d also suggest that calling attention to homeless students’ rights reflects a commitment to social justice. Listening, working through differences, and following the law can go a long way toward ensuring that children with disabilities—including those who have the additional burden of being homeless—get the education they deserve.

Mark Paige is associate professor of public policy at the University of Massachusetts-Dartmouth and a board member of the Education Law Association.

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