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Special Education Law
University of Dayton School of Law
Russo, Charles J.

Russo, Special Education Law, Fall 2011
Children can be tested as early as age 3 for disabilities.
Special needs kids make up about 15% of the population.
General financing
School systems are funded under two separate systems.
        Regular students are funded through the property taxes in all states except Michigan.
        Special Ed. Students are then funded through the IDEA, which the federal government was supposed to pay 40% of that money back to the states.
                In reality the federal system only pays about 6% to the schools.
PARC v. Commonwealth of Pennsylvania and Mills v. Board of Education of the District of Columbia
The two cases that allowed for special needs children to gain rights.
        These cases show that children can be taught even though they have disabilities.
504 of the Rehabilitation Act of 1973
any one who has, or had, or believed to have had an impairment that significantly affects one or more of life’s activities (two major activities is work and school)
        anyone who is otherwise qualified
        cannot be denied the benefits of or participation receiving federal funding (virtually every school is  covered under this, certainly public schools are covered under federal funding.)
                if or otherwise qualified by reasonable accommodation.
3 defenses
-if the cost of making an accommodation is too great
·         this cost must be grossly significant, otherwise the cost alone is not sufficient enough to exclude a child.
·         When the defense is brought up the amount of money is measured against the entire school budget
·         Extremely unlikely to win in a public school setting, instead more likely to win in a private school with a limited school budget
-a significant alteration in the nature of the program
-if someone’s presence created a health or safety risk for those in the program.
must be between the age of 3 and 21.
Children can be identified before age 3 but they are not entitled to federal funding until they reach the age
If the child turns 21 before the end of the school year then the law allows for the child to finish out that particular school year.
Michigan has extended the age to 25, but the child would not get federal funding instead it is state funding.
If the child does not have an identifiable disability under the statute then the child is not covered. p.34
3 conditions – these conditions are not enough to qualify for special services unless they are included with other disabilities
·         sickle cell anemia
·         HIV/AIDS
·         ADD/ADHD
Needs special education
Contents of this is found in the child’s IEP
Related Services
i.e. transportation, occupational therapy, physical therapy, and housing.
Once a child is covered under IDEA, the child is given the rights to these related services no matter how much it costs.
The Differences between 504 and IDEA
1. IDEA allows for some additional funding, but 504 does not (no money)
504 – no money
IDEA – additional funding from federal government
2. 504 is broader than the IDEA
504 – I have an impairment when I say I have one
IDEA – must pass certain criteria and testing to be considered disabled
3. IDEA makes an affirmative obligation to identify, assess, and serve students with disabilities, whereas, 504 it is up to the person who needs the assistance to request these accommodations to ask for them.
504 – if you want it you must ask
IDEA – school must

sole person who made the record is not something that is covered under FERPA, because it is not shared
·         Unless a custodial parent has a court order to the contrary, the divorced parent has the same right as the custodial parent to see the child’s records.
·         Amending
o   You can challenge to have something removed from the child’s record. First, must make a request to have it removed, if it is not removed then you can start a due process hearing.
§  If the information is still not removed the parent can add statements to explaining their objections to the record, and these must be kept with the original record.
There is NO private right of action under FERPA
Exceptions to FERPA
The purpose of these exceptions is to assist in the smooth administration of schools, especially as personnel from different school systems interact with one another. If there is a child that is the only child in the category then this cannot be disclosed. (i.e. you can say it is 30% African American, 69% Caucasian, and 1 Native American…the Native American identification is a violation of FERPA)
·         1. School employees with legitimate educational interests can access student records
·         2. Officials representing schools to which students apply for admission can access their records as long as parents receive proper notice that the information has been sent to the receiving institution