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IBA: The Basics of Education Law for Lawyers

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By Catherine Michael, J.D.Chair of the Education Law Division of Hollingsworth & Zivitz, P.C.

In an increasingly complex world full of legal intricacies and overlapping requirements, the sphere of Education Law has become a jungle filled with a multitude of federal and state laws, regulations, case law decisions, and executive orders. It is a practice area that requires a thorough knowledge of the law for both those representing schools and parents.

Federal law plays a major role in education cases today. These laws include: No Child Left Behind (NCLB), the Individuals with Disabilities Act (IDEA), Section 504 of the Rehabilitation Act of 1973, FERPA, HIPPA, and the ADA. In addition to the requirements found in the federal system, Indiana must develop, maintain and operate its own school system. In Indiana, our rules provide for school structure and guidance. An entire article of the Indiana Code, Article 7, is dedicated exclusively to laying the framework for Special Education in public schools.

For education attorneys in Indiana who represent parents, the practice frequently involves Article 7 Special Education Due Process Hearings, Section 504 Due Process Hearings, and school disciplinary issues. Both IDEA and Article 7 of the Indiana Code require all public and charter schools in the State to develop an Individualized Education Plan (IEP) for each student with a disability who is qualified for special education. This IEP must be specific to the child and provide specially designed instruction. This “Specially designed instruction” must address the content, methodology or delivery of instruction, specific to the child’s unique needs resulting from the disability, while ensuring the child’s access to the general curriculum so that he or she can meet the educational standards that apply to all children. 34 CFR 300.39 (b)(3).

Unlike No Child Left Behind, there are no reporting requirements or state review as to a school’s compliance with the special education laws specific to individual children and their programs. Article 7 and IDEA require the parents to enforce the law if violations occur. This is done by instituting an “Education Due Process Hearing” thru the Indiana Department of Education. For example, if a school has not provided programming, or has failed to address an area of need for the child, the burden is on the parents to seek review.

For students with disabilities like autism or an anxiety disorder, the needs are not merely academic. The specialized and unique needs of a student with a disability encompass more than a mastery of academic subjects such as reading and math. These extend to include emotional and psychological needs, life skills, and social training. See County of San Diego v. California Special Educ. Hearing Office, 24 IDELR 756 (9th Cir. 1996).

What can often lead to litigation is that the law does not spell out to a clear and definitive degree what is “appropriate,” since it is meant to be specific to each individual child. “The contours of an appropriate education must be decided on a case-by-case basis, in light of an individualized consideration of the unique needs of each eligible student.” Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 553 IDELR 656 (U.S. 1982). This leaves practitioners relying extensively on federal case law for similar cases and expert testimony regarding the specific needs of that individual child.

Article 7 Special Education Due process hearings are hearings structured very similar to that of a trial. They can last three days or three weeks, depending on the number of witnesses and issues. Appeals of the hearing officer’s decision proceed directly into federal court.

Another focus of education attorneys representing parents is that of injury in school. Due to tort reform rules and the fact that a school is considered a public entity, the damages in school cases are capped and often there are many federal issues. There is also the need to exhaust administrative remedies in actions where one or more of the remedies may be a different education placement or need, such as a residential facility or private placement.

While this is a complex field, it is a very fulfilling one for many education focused attorneys. Practitioners for both schools and parents have the rewarding job of working to ensure that children are being educated appropriately and their needs are being met.•

Association Note: In the fall 2011, the IndyBar Pro Bono Standing Committee will be restoring its School Education Advocacy program. IndyBar teaming up with the Foster Youth Education Initiative to provide volunteer assistance to youth in need of a variety of educational services. IndyBar members interested in advocating for children with special needs, please watch Indiana Lawyer, IndyBar.org, and weekly e-bulletins for more information about early fall training sessions.

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  • education law
    am question is have spec need child that goes to merrivllve school district he has 28 day that he missed from school some staff have dfr to come home while present do have case.

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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