Laws That Protect Children With Disabilities
Contrary to popular belief, the U.S. Constitution does not provide for a right to a public education for any child. States that choose to provide educational opportunities to children may not exclude or arbitrarily children with disabilities. Many laws protect children with disabilities. They include:
- Americans with Disabilities Act (“ADA”);
- Section 504 of the Rehabilitation Act (“Section 504”); and
- Individuals with Disabilities Education Act (“IDEA”).
Compliance with these laws usually satisfies any constitutional requirements to provide public education for disabled children.
The ADA provides “for the elimination of discrimination against individuals with disabilities.” ADA covers employment, public services, and public accommodations and services operated by private entities. The ADA protects individuals who (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such impairment; or (3) are regarded as having such impairment and otherwise qualify for the program, service, or job.
Unlike the requirements of Section 504 and IDEA, the ADA does not directly require an organization to provide a free appropriate public education (“FAPE”). However, it does limit separation or differentiation of able-bodied students from disabled students to that necessary to protect the health and safety of students. For instance, where a disabled student has the choice of playing in a disabled athletic league or regular league if so qualified to play, the disabled student makes the choice. Reasonable accommodations to limit separation or discrimination include redesigning equipment, assigning aides, providing alternative formats for written material, modifying tests, altering existing facilities, and building new facilities.
The ADA does not address specific procedural safeguards related to educating the disabled, but it does detail administrative requirements, complaint procedures, and penalties for noncompliance. Also, the ADA does not describe due process procedures. Students discriminated against may file a complaint with the Department of Education or sue in federal court.
Similar to the purpose of the ADA, the purpose of Section 504 seeks to forbid discrimination based on disability in both public and private programs and activities that receive public financial assistance. Section 504 differs from the ADA mainly in its application. While the ADA applies to all educational institutions, Section 504 applies only to educational institutions that receive federal financial assistance. However, most school districts accept federal financial assistance so Section 504 applies to most schools.
The ADA and Section 504 protect almost the same individuals, but an evaluation by a group of individuals decides who receives benefits and what benefits recipients get. The evaluation must consider information from various sources. Specifically, “placement decisions are to be made by a group of persons who are knowledgeable about the child, the meaning of the evaluation data, placement options, least restrictive environment requirements, and comparable facilities.” 34 C.F.R. § 104.35(c)(3) Under Section 504, educational institutions must place disabled students so the students receive FAPE comparable to that provided to students without disabilities.
Section 504 procedural safeguards require parental notice about identification, evaluation, or placement. The parental notice requirement only applies to major decisions. Also, Section 504 requires educational institutions to provide impartial hearings for parents who disagree with identification, evaluation, or placement decisions.
While the ADA and Section 504 provide loose definitions, requirements, and procedures, the IDEA provides less flexible criteria and procedures that educational institutions must follow. Under the IDEA, a child must meet specific criteria to qualify for benefits. Specifically, in contrast to the ADA and Section 504 that apply throughout an individual’s lifespan in many areas for those who qualify, the IDEA applies to students from preschool to graduation only. In addition, the IDEA has a more restrictive definition of a disabled child. The IDEA defines a child with a disability as a child “with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title as ‘emotional disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and who, by reason thereof needs special education and related services.” To qualify for benefits under the IDEA, evidence must exist that the child’s disability adversely affects the child’s educational performance. A child has a right to an evaluation to decide whether the child qualifies for special education.
The IDEA requires educational institutions to provide FAPE to qualified students. FAPE includes special education and related services. Special education means, “specially designed instruction, at no cost to the parents, to meet the unique needs of the child with a disability ….” A related service is added help the child needs to meet his or her educational goals such as transportation, interpreting services, and psychological services. In addition, the IDEA requires the qualified child to have an Individualized Education Program (“IEP”) document. A team including the parents prepares the IEP, which describes the child’s present performance level, annual goals, and special educational services.
IDEA procedural safeguards require parents to receive written notice before any major changes in a child’s placement or services. In addition, the IDEA requires educational institutions to provide impartial hearings for parents who disagree with identification, evaluation, or placement decisions. The educational institution must comply with a child’s current IEP and placement until all due process proceedings are resolved.
The ADA, Section 504, and IDEA provide protections to disabled students. The major difference between the three laws is the ADA and Section 504 have more flexible requirements than the IDEA. Many educational institutions try to avoid compliance with these laws robbing many students of an appropriate education at the appropriate time so parents must protect their children by advocating effectively
