Notes on Special Education

We have a terrific coterie of LDS lawyers in Chicago, and some of us occasionally get together under the auspices of the J. Reuben Clark Law Society for lunch and a speaker or presentation or something. Yesterday about ten of us went to the offices of Equip for Equality (the Illinois protection and advocacy system for people with disabilities) for a continuing legal education presentation on special education law. This was not something any of us needed for our actual practices, although a couple of those in attendance have children with special needs and thus had a personal interest in the subject. But as lawyers we often get asked questions about all sorts of things at church, and it’s nice to know a bit about the big picture of issues like this. I personally was interested mainly because I have a younger brother who is autistic (although he’s long out of high school), and also from my friend and coblogger Tracy M. talking about these things with respect to her own experiences. There is no way I can replicate the full presentation here, so I’ll just hit a few of the high points.

The primary sources of law in this area are the Individuals with Disabilities Education Improvement Act (IDEA) and Section 504 of the Rehabilitation Act. Special education is specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. It applies from age zero to the day before a child’s 22nd birthday or until high school graduation, if that is sooner.

Some questions to ask in determining whether a child might need special education: Does a student have difficulty in school academically or behaviorally? Does a student need tools or services to understand materials or teachers in school? Does a student need help to get into the school or use school equipment? Does the school staff understand the student’s needs? Is the student’s behavior impeding his/her learning or the learning of others?

Eligibility: The term “child with a disability” means a child with intellectual disabilities, hearing impairments, speech or language impairments, visual impairments, serious 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.

Steps of the Eligibility Process: (i) request an evaluation from the school, (ii) sign consent for the evaluation (usually at a “domain” meeting), (iii) participate in the evaluation (the school has 60 school days to complete the evaluation), (iv) attend an eligiblility meeting, and (v) create an IEP.

What is an Individualized Education Program (IEP)?

  • Legally binding
  • Like a contract, but not exactly (parent cannot sue based on breach of contract if child does not meet goals; however, parent can file due process request or pursue other conflict resolution options)
  • Describes present levels of performance
  • Details goals and objectives/benchmarks
  • Details related services, supplementary aids and services, and transition services

IEP meeting

  • Held at least annually
  • IEP team: parents, not less than one regular ed teacher (if child may participate in regular ed), not less than one special ed teacher, representative of local education agency (i.e., the district), an individual who can interpret the instructional impication of evaluation results, others who have knowledge or special expertise (such as an attorney; parents can bring an expert to the meeting), and whenever appropriate, the child with a disability.
  • Team members sit around a conference table
  • Meeting is informal, although everyone signs in
  • Can feel intimidating to have so many school staff attending
  • Parents should feel free to voice their concerns

Placement Change. The IEP Team will discuss the student’s placement. If a change in placement is recommended and the parent does not agree, the parent has protections that must be invoked within 10 calendar days:

  • Request mediation
  • Request a due process hearing
  • Invoke “stay put” to keep the student in the last agreed-upon placement until the conclusion of the hearing or mediation

Least Restrictive Environment (LRE). To the maximum extent appropriate children with disabilities . . . are educated with children who are not disabled.

Removal: When the nature and severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Re-evaluation. A re-evaluation must occur every 3 years unless the parent and school agree it is unnecessary. The parent or teacher can request an evaluation but not more than once per year unless the school agrees otherwise. Parents should never agree that it is unnecesssary without a very specific reason.

The above reflects a summary of about half of the presentation. I will close with a list of general tips for parents:

  • Be professional and courteous even when the school is not.
  • Keep all correspondence with the school.
  • Communicate or confirm in writing.
  • Save all anecdotal communications with the school. (Keep a communication notebook; number the pages. Keep signed copies of all letters sent to/from school.)
  • Log all observations when observing at school.
  • Log all observations of child’s negative behavior at home that is result of school issues.


  1. I remember attending a meeting of this group about 15 years ago and hearing a smart bond lawyer present on the Nauvoo charter.

  2. Kevin Barney says:

    I wonder who that could have been?

  3. PassTheChips says:

    ” (i) request an evaluation from the school,”

    You can also request an independent evaluation at public expense (i.e., going to a doctor that specializes in the disability that you suspect your child might have vs. using the school psychologist).

    In the case with my autistic son, we had to do this because 1. We didn’t agree with the diagnosis performed by the school (i.e., it labeled him as having an emotional disability (ED) vs. autism, which triggers a different set of goals/accommodations and put him in an ED class vs. in a mainstream class with support) and 2. A very supportive special ed teacher told us in confidence that the school was in cost cutting mode and to not trust the diagnosis.

    Re: the IEP meeting

    You can also bring in professional advocates. They are much less expensive than attorneys, they know just about as much as the attorneys about the IDEA law, and bringing in an advocate vs. an attorney is a touch softer. Ultimately, you’ll need to work with the school (and follow up and follow up and follow up) to ensure that what is documented within the IEP is implemented and relationships with the school matter.

  4. Kevin Barney says:

    Thanks for the added color from the trenches, PassTheChips.

  5. The school isn’t obligated to provide the best possible education for your child, but merely “adequate” education. Expect D- effort on their part. They’d rather put all handicapped children in the special classes and be done with it, rather than try to educate them in LRE with other kids. The special education teacher might be your friend, but her boss (and other administrators) definitely aren’t.

  6. PassTheChips says:

    phbrown is right. According to IDEA, the school is only legally obligated to provide a Free Appropriate Public Education (FAPE).

    How schools interpret and implement FAPE is all over the place, even within the same district, and even within the same school. We became school and teacher shoppers as a part of our ongoing journey.

  7. As a parent, I have had wonderful experiences with teachers, speech language pathologists, and school psychologists/counselors as well as some great IEP meetings and evaluations. There have been a few that weren’t stellar, of course, but I have found:
    1. I have learned something useful for me to help my child from every evaluation. School evaluations and private evaluations can have different scope and depth. I’ve had evaluations that have been free at school, with $15 copays, or have cost $500. I have appreciated every single on of them and the insight I have gotten while going over the tests has been helpful (even when services were turned down for a problem not being severe enough).
    2. I have seen positive things happen even if things didn’t exactly go my way
    3. If you want things not to stall, you always send an email. The email starts the clock on when they have to do something to respond.
    4. If you are cheerful and enthusiastic, supportive, and realistic, most educators really want to hear about your insight about your child. At a kindergarten IEP meeting, I handed out packets with information I wanted them to know about my son (copies of things that I felt showed his developmental level, lists of his abilities). When you have a child with a disability, you have to educate yourself as much as you can to help them.
    5. You can always say no to what they suggest, but you can’t always make them do something they don’t want to do. I know many parents who were in constant battles. I never was. I viewed my job as getting him the services that the school could provide as part of an overall plan of educating him myself. What a school couldn’t provide was simply something I could provide in another way.
    6. These people are the ones who are actually with your child all day. It never makes sense to antagonize them. In fact, going out of your way to acknowledge them as hardworking, caring people will brighten their day and will benefit your child and the other children that educator sees all day. The first day of kindergarten, that kindergarten teacher had coloring pages for the kids when they first walked in. One of those was a space ship which she had chosen specifically because my son loved space. If I hadn’t walked my son in to school, I would never have caught her eye and had that quick conversation and never have known that caring little thing she did to help my child feel comfortable on the first day of school.

  8. Kevin Barney says:

    jks, thanks so much for sharing your experience with us.

  9. It was a great presentation. Thanks for the summary. I hope we can do more of these presentations in the future.

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