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.