Children with Disabilities Have Special Rights in School
By Julie Kim, law student, and Jane Wettach, Director
Children’s Education Law Clinic, Duke University Law School
Parents who have discovered that their child has a learning disability or other condition that affects their child’s ability to make good progress in school may understandably feel like they have been thrown into the middle of an ocean without a paddle. Instead of simply enrolling their child in school and watching as he or she progresses from grade to grade, parents must now tread into the unknown waters of Individualized Education Programs, psychoeducational evaluations, and the continuum of placements. But parents who become well informed about their child’s challenges and about their child’s rights to special education, and who are willing to work in cooperation with the educators in the child’s school system, have a good chance of seeing their child make good educational progress.
Any time a child seems not to be learning grade level material at approximately the same pace as most of the other children, parents and teachers should begin asking why. Learning problems can be caused by any of a number of reasons, such as uncorrected hearing or vision, a lack of early preparation for school, or teaching techniques that are not suited for the child’s learning style. To explore possible causes of learning problems, parents should obtain a good physical exam of the child by a pediatrician to rule out any health problems. Parents should also have a meeting with the child’s teacher to explore ways that the parents and teacher can better support the child’s learning process.
If the learning problems cannot be solved through this process, the child might have an unrecognized disability that is causing the problem. If that is the case, the child is eligible for special education. Before receiving special education, which is specialized instruction and related services, the child must be evaluated (tested) to determine if a disability exists. Usually, this is done in school by a school psychologist. The testing results are discussed at a meeting with school personnel and the parents to determine if the child has a learning-related disability and would benefit from special education. The following types of disabilities are recognized as impairing the learning process: Autism; Behavioral-Emotional Disability; Deaf-Blind; Hearing Impaired; Mentally Disabled; Multi-handicapped; Orthopedically Impaired; Other Health Impairment (including Attention Deficit Disorder); Developmentally Delayed; Specific Learning Disabled including dyslexia); Speech-Language Impaired; Traumatic Brain Injury; Visually Impaired.
Once a child is determined to have a disability and in need of specialized instruction, then he or she is entitled to an Individualized Education Program (IEP). A child’s IEP customizes his or her educational programming to ensure reasonable educational progress. Planning an IEP requires the combined efforts of parents, teachers, and other school personnel. The IEP must include a statement of measurable annual goals (e.g., how much progress the child will make in reading within a year), identify all needed related services (e.g., how much time a child will spend with various specialists, such as a speech or occupational therapist), determine what classroom and testing modifications the child needs (e.g., whether the child needs to be tested in a separate room, have the test read aloud, or be exempt from standard testing altogether), and state the setting in which educational services will be provided (e.g., in a separate classroom, or “mainstreamed”). The IEP is reviewed at least once annually, but can be revised more often if necessary.
A child identified with a disability has certain rights and protections. First, the child is entitled to services appropriate to allow him or her to make real academic progress, regardless of the nature of the disability. Second, the child is entitled to learn in the least restrictive environment, meaning with children who are not disabled, to the maximum extent possible. Third, the child is protected from being excluded from school for more than 10 days if misbehavior is caused by or has a direct relationship to the disability. Finally, the child has the right to continued educational services during any period of suspension caused by misbehavior unrelated to his or her disability.
The parents of children with disabilities have rights, too. Parents have the right to be included in all meetings to discuss their child’s eligibility for special education and the child’s special education program. They have the right to review the child’s records, and to have someone of their choice review the records. They also have the right to appeal decisions of school personnel about the child’s special education program if the parents disagree with those decisions.
Parents of a child with a learning-related disability should pay close attention to whether their child is making good academic progress with the IEP. If the child is not keeping up with grade level work, a new IEP may be needed to provide additional or different services. Also, parents should make sure that their child is receiving all the services he needs to remediate the disability.
Problems with the special education program should first be addressed with school personnel. But if the problems cannot be solved informally, parents may wish to seek out the services of a knowledgeable advocate or attorney to assist. The Children’s Education Law Clinic at Duke Law School provides free legal services to low-income families whose children attend school in the districts in and around Durham County. More information is available at www.childedlaw.org.
