The Law and Special Education

1
The Law and Special Education

• Mitchell L. Yell

2
Chapter One

• Introduction to the American Legal System

3
The American Legal System Federalism

• The American system is a federal system, where
  the government of the U.S. is made up of the
  states joined under a central federal government.
• The Constitution grants certain powers to the
  national government, and the rest are left to the
  states.
• The Constitution does not include anything
  regarding education, so education is governed by
  the laws of each state.
• The federal government is still involved in the
  progress and growth of education, indirectly
  through the Constitutions general welfare
  clause.
• The federal government provides indirect
  assistance to education by offering categorical
  grants to states.

4
The American Legal System Sources of Law

• There are four sources of law, constitutional,
  statutory, regulatory, and case, all of which
  exist on the federal and state level.
• Constitutional Law
• The U.S. Constitution is the basic source of law.
  
• There is a separation of powers between the
  legislative, executive, and judicial branches
• Federal statutes are based on provisions of the
  Constitution. For example Article I, Section 8 is
  the basis for special education provisions.
• The Constitution can be amended by the Congress
  and the states.
• The 14th Amendment has become the constitutional
  basis for special education.

5
The American Legal System Sources of Law

• State Constitutions
• Each state has its own constitution, which tend
  to be more detailed than the U.S. Constitution.
• States have educational mandates in their
  constitutions.

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The American Legal System Sources of Law

• Statutory Law
• Congress has the authority to make laws.
• Laws made by Congress or state legislatures are
  called statutes.
• The process for enacting laws is long and
  complicated.
• Enacted laws (or statutes or acts) is designated
  a public law (P.L.) if it is intended to apply
  generally. The laws receive a name and a number.
• Most statutes concerning education are state
  laws.

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The American Legal System Sources of Law

• Regulatory Law
• The statutes passed by Congress tend to be broad
  and general in nature.
• Congress delegates power to administrative
  agencies to create regulations (or rules or
  guidelines) to provide specifics for the
  statutes.
• Violating a regulation is as serious as violating
  the law.
• The administrative agencies usually can make
  rulings on the law and its regulations.

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The American Legal System Sources of Law

• Case Law
• Case law refers to the published opinions of
  judges that arise from court cases where they
  interpret statutes, regulations, and
  constitutional provisions.
• The U.S. legal system places great value in these
  decisions and the legal precedents they
  establish.
• The emphasis on case law is from the legal
  tradition established in England called common
  law.
• Common law consists of court opinions in specific
  disputes.
• Many areas of law consist largely of common law
  or case law, especially in special education.

9
The American Legal System Sources of Judicial
Power

• Horizontal Power
• Supreme Power In some areas of decision making,
  the power of the judiciary is virtually supreme,
  so the courts act as the ultimate interpreter of
  the Constitution.
• Limited Power Judicial decisions involve the
  interpretation of laws of the legislative branch,
  but the legislature can change the law if it
  disagrees with a courts interpretation.

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The American Legal System Sources of Judicial
Power

• Vertical Power
• This regards the hierarchical structure of the
  system.
• The levels, from lowest to highest, are the trial
  court, the intermediate appellate court, and the
  court of last resort or the supreme court.
• There are 51 jurisdictions in the U.S. the
  federal courts and the 50 state courts.
• Lines of authority exist within the system, but
  they do not cross jurisdictional lines.

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The American Legal System Court Structure

• The general model of the hierarchy of courts
  applies to both the federal system and state
  jurisdictions.
• Trial Court
• This is the first level in the court system, with
  the purpose of fact-finding.
• Once the facts of the case are determined, they
  can not be appealed.
• Issues of law also arise, but the rulings of the
  judge on the law can be appealed by a higher
  court.
• There are almost 100 trial courts, called U.S.
  District Courts, in the federal judicial system.
• In special education cases, fact finding is
  conducted during the administrative review
  process, so the trial court determines if the law
  was applied correctly.

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The American Legal System Court Structure

• Intermediate Appellate Court
• When litigants appeal the trial court decision,
  it is usually heard by the intermediate appellate
  court.
• The appellate court reviews the trial courts
  decision on the issues of law, to determine if
  the decision should be affirmed, reversed, or
  modified.
• Decisions of the appellate court develop law
  through the creation of precedents.
• The appellate court does not retry the case.
• Each federal appellate court has 12 judges, but
  cases are usually heard by only 3 judges.
• There are 13 U.S. Courts of Appeals.
• The 13th, called the Federal Circuit, hears
  appeals throughout the country on specialized
  matters.

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The American Legal System Court Structure

• Court of Last Resort
• This is called the Supreme Court in most
  jurisdictions.
• They cannot hear every case that is appealed, so
  they determine which cases they will hear.
• The court has an appellate function, so its
  decisions are important sources of law.
• The U.S. Supreme Court is the highest court in
  the country.
• The Supreme Court files petitions to ask the
  Court to consider the case, and the Court will
  either grant or deny the petition.
• The U.S. Supreme Court grants petition to less
  than 1 of cases.

14
The American Legal System Precedence

• The American system of law follows the doctrine
  of stare decisis, or precedence, where courts are
  expected to follow the decisions of courts in
  similar cases.
• A decision by a higher court controls the
  decisions of lower courts in the same
  jurisdiction, which is controlling authority.
• Persuasive authority comes from a court that is
  not controlling.
• A court does not have to follow the precedent,
  but does so because it is persuaded by the
  decision.
• Only published cases can be used for precedence
• All of the decisions of the U.S. Supreme Court
  are published.

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The American Legal System Holding and Dicta

• The holding of the case is the actual ruling on a
  point or points of law.
• The dicta consist of the rest of the decision,
  judicial comments, illustrations, speculations,
  etc.

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The American Legal System The Opinion

• A written opinion usually includes a summary of
  the case, a statement of the facts, an
  explanation of the courts reasoning, and a
  record of the decision.
• It also includes the authors name and names of
  justices who agree with it.
• A concurring opinion is when a judge agrees with
  the majority of the court on the ruling, but not
  with the reasoning used to reach the ruling.
• A dissent is when a judge does not agree with the
  results reached by the majority.
• Dissents can dissuade the majority justices from
  judicial advocacy, encourage judicial
  responsibility, and appeal to outside audiences
  for correction of perceived mistakes by the
  majority.
• Dissents are sometimes used to appeal to a higher
  court or legislature to correct the courts
  action.

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The Law and Special Education

• The four branches of the law interact, and laws
  are sometimes made in one branch in response to
  developments in another branch.
• In the development of special education law,
  actions in the courts created the right to a
  special education for children with disabilities
  under the 14th Amendment.
• Following this, Congress passed legislation to
  ensure the educational rights of children with
  disabilities, and regulations were made.
• All states then passed state laws and created
  state regulations ensuring the provision of
  special education to qualified children.
• Disputes have led to federal litigation to
  interpret the special education law.
• Some litigation has led to more legislation,
  which has led to more litigation to interpret it.
• The development of the law is cyclical, and that
  is how special education law evolves.

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Chapter Two

• Legal Research

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Legal Research

• Legal research is the process of finding and
  understanding laws that govern activities in our
  society.
• Special education is among the most frequently
  litigated areas in education, so there is an
  extensive body of cases interpreting the rules
  and regulations involved.
• Legal research requires the understanding of a
  variety of resources.

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Primary Sources

• Primary sources are actual statements of the law.
• Enormous amounts of primary source materials
  available are issued chronologically rather than
  by subject.

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Primary SourcesStatutes and Regulations

• Federal Statutes
• Statutes are organized by topic and are published
  in a series of volumes called the United States
  Code (U.S.C.).
• The 50 titles are divided into chapters and
  sections.
• Each title contains the statutes that cover a
  specific subject.
• Title 20 contains education statutes
• The U.S.C. is considered the official version of
  federal statutes, and is available on the
  internet.
• There are also two annotated versions of the
  U.S.C., which contain information pertaining to
  each statute.
• They are the United States Code Annotated
  (U.S.C.A.) and the United States Code Services
  (U.S.C.S.)

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Primary SourcesStatutes and Regulations

• Federal Statutes, cont.
• Since federal statutes are frequently amended, it
  is important to locate the most recent version.
• A paper supplement, called a packet part, is
  included in the back of each book of annotated
  codes to update it annually.
• If the statute being researched is recent or
  currently pending in Congress, it will not be
  available in the annual pocket part.
• U.S.C.A. is updated between pocket part
  publications by its Interim Pamphlet Service.
• Several methods can be used to find federal
  statutes.

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Primary SourcesStatutes and Regulations

• Finding a Statute by Citation
• A reference to a primary law source is a
  citation.
• A citation tells where the law source is located.
  
• The standard form for citations is the title
  number, letters referring to the code, the
  section number, and subsection.

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Primary SourcesStatutes and Regulations

• Finding a Statute by Popular Name
• The statute can be found in the Popular Name
  Table
• The Table provides the following information the
  popular name, public law and statute at large
  numbers, date of passage, and the title and code
  sections.
• Finding a Statute Using the Annotated Code Index
• The General Indexes to the annotated code may be
  used to locate the statute if the subject of the
  statute is known.
• Every title of the annotated codes also has an
  index in the back of the final book in the series
  of the title.

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Primary SourcesStatutes and Regulations

• State Statutes
• Some states organize their statutes in volumes
  according to subject by name
• Most states assign a title or chapter and section
  number to each subject, similar to the U.S. Code.
  
• Most collections have indexes for all laws and
  for each subject.
• State statutes are often changed.
• All stated have the unannotated versions of their
  codes available on the Internet in some format.

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Primary SourcesStatutes and Regulations

• Federal Regulations
• Federal administrative agencies produce
  regulations to implement and enforce federal
  statutes.
• These regulations are published in the Federal
  Register and the Code of Federal Regulations
  (C.F.R.)
• Finding Regulations by Citation
• Regulations also have citations that tell where
  the regulation is located.
• The citation is in standard format, which is the
  title number, C.F.R., section number, and
  subsection letter and number.

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Primary SourcesStatutes and Regulations

• Finding Regulations by Subject
• The Index and Finding Aids volume of the C.F.R.
  can be used to search by title.
• A keyword search can be conducted on the website
  at www.gpoaccess.gov/cfr
• Updating Regulations
• Regulations are often changed in some way.
• To check if a regulation is up to date, consult
  the monthly pamphlet entitled Code of Federal
  Regulations List of Sections Affected
  (C.F.R.-L.S.A.) or check the website.

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Primary SourcesStatutes and Regulations

• State Regulations
• State regulations can be difficult to locate.
• Special education regulations are often found
  under the category of education regulations.
• In many states, regulations are published in
  loose-leaf form by the promulgating agency.
• Unannotated state regulations and registers are
  also available on state government websites.

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Primary SourcesCase Law

• An important part of legal research is finding
  cases that interpret statutes and regulations
• Cases are published in volumes, called reporters,
  which are available in all law libraries

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Primary SourcesCase Law

• Federal Cases
• There are no official publications by the
  government for federal district or appellate
  court decisions.
• West publishes reporters on decisions of the
  lower federal courts, and this information is
  located in electronic databases.
• The published decisions of the U.S. District
  Courts are collected in the Federal Supplement.
• The published decisions by the U.S. Court of
  Appeals are collected in the Federal Reporter.

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Primary SourcesCase Law

• Federal Cases, cont.
• The complete decisions of the U.S. Supreme Court
  are published in three sources
• United States Report (U.S.)
• Supreme Court Reporter (S.Ct.)
• United States Supreme Court Reports, Lawyers
  Edition (L.Ed.)
• The last two are unofficial publications, which
  include editorial enhancements

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Primary SourcesCase Law

• Federal Cases, cont.
• During the lag period between the date the case
  is decided and when it is published, new cases
  can be located in weekly updates called advance
  sheets.
• The most recent slip opinions may also be kept in
  the reference section of law libraries located
  within that particular courts jurisdiction.
• Opinions are accessible from official federal
  court websites daily.

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Primary SourcesCase Law

• State Cases
• The published appellate court decisions for each
  state can be found in that states official
  report.
• Wests National Reporter System provides the
  published appellate cases for each state,
  including editorial enhancements.
• Advance sheets containing recent cases are also
  provided for the regional reporters.
• State court slip opinions can be found in local
  law libraries, directly from the state appellate
  courts, or from judicial websites.

34
Primary SourcesCase Law

• How to Find Cases
• Cases are published chronologically rather than
  according to subject.
• Finding Cases by Citation
• Every published decision has a citation that
  makes it possible to locate it in the reporters.
• Citations follow a standard format of name of
  case, volume number, name of reporter, page
  number, and court and year of decision.

35
Finding Tools

• Several finding tools are designed to help the
  researcher locate primary sources.
• These tools include annotated codes, digests,
  indexes, legal encyclopedias, American Law
  Reports (ALR) annotations, and Shepards
  citators.

36
Finding Tools The Annotated Codes

• The annotated versions of the United States Code
  are powerful research tools.
• These can contain valuable information such as
  legislative history, cross references to other
  federal statutes and regulations, references to
  the American Digest System topics and key
  numbers, citations to secondary sources, and
  abstracts of relevant cases that have interpreted
  a statute.

37
Finding Tools The West Digest System

• For each set of Wests reporters there is a
  corresponding digest.
• These digests are alphabetical indexes to case
  law, arranging headnotes of cases by topics and
  key numbers.
• The West Topic and Key Number System
• A case published in a West reporter follows a
  standard format.
• First is the title of the case, followed by the
  docket number, the court in which the case was
  heard, and the date the courts decision was
  handed down.

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Finding Tools The West Digest System

• The West Topic and Key Number System, cont.
• Next is the synopsis of the case.
• After this is the headnote section, which are
  editorial enhancements included one-sentence
  summaries of legal issues arising in a case. Each
  headnote appears as a boldface number, followed
  by a topic, an illustration of a key, and a key
  number.
• The key number system allows for classification
  of different points of law.
• Headnotes are grouped with similar legal topics
  from every published case that deals with that
  issue.

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Finding Tools The West Digest System

• Using the Digest System
• A number of different digests are published by
  West. Each one contains headnotes for certain
  courts and is designed to fill a different need.
• When using the digests to find cases, it is
  preferable to begin with the one that is
  narrowest in scope.
• Those interested in federal special education
  cases should consult the Federal Practice Digest.
  

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Finding Tools The West Digest System

• Using the Digest System, cont.
• To access the digest system, the researcher needs
  to determine the relevant topic and key
  number(s).
• The headnotes under each topic and key number are
  arranged by jurisdictions in chronological order,
  beginning with the most recent.
• Cases can also be located using the descriptive
  word indexes, the table of cases volumes, and the
  words and phrases volumes.

41
Finding Tools Shepards Citators

• It is critical that the case of interest is still
  valid, meaning that it has precedential value and
  hasnt been overruled or reversed.
• A search of a case in Shepards citators will
  direct the researchers to other cases and
  secondary authorities that have cited in it.
• The process of shepardizing is an essential
  part of legal research.
• Although Shepards remains the only print legal
  citator system, it now faces competition online.
• Shepards citators became available on the
  LexisNexis online database.
• West Group introduced its own citator system,
  KeyCite, available exlusively online.

42
Finding Tools Shepards Citators

• Once a citation for a case is located in
  Shepards, the citatory lists every case that has
  referred to it.
• Every case, important or not, that cites the case
  being researched will be listed.
• This can lead to numerous listings, especially
  landmark cases that are cited frequently.
• Shepards listings do not cumulate, so a
  researcher may need to consult a series of
  Shepards citators for full coverage of a case.
• Shepards case citators are organized according
  to the reporters that publish the cases.
• Shepards citators consist of page after page of
  columns of numbers and symbols.
• Electronic citators have distinct advantages over
  Shepards citators in print.

43
Secondary Sources

• Secondary sources are materials that describe and
  explain the law.
• They are unofficial, so they have no formal
  authority, but may have significant persuasive
  authority.
• Secondary sources have two functions
• to provide citations to primary source material
• to introduce the researcher to a particular area
  of the law by explaining the issues involved
• Secondary sources of information include legal
  encyclopedias, legal newspapers, legal
  periodicals and law reviews, loose-leaf services,
  and Internet resources.

44
Secondary SourcesLegal Periodicals and Law
Reviews

• Legal periodicals can be the best place to begin
  researching a legal issue, because of their
  extensive coverage and footnoting to primary
  authorities and other secondary sources.
• Law reviews are periodicals that contain articles
  on legal developments, legal issues, historical
  research, and empirical studies.
• Law review articles are often cited by legal
  scholars as well as by the courts and can have
  great persuasive authority.
• Many law schools publish one or more specialized
  academic journals in addition to general law
  reviews.
• Some examples are Journal of Law Education,
  Index to Legal Periodicals (ILP), Current Law
  Index (CLI)

45
Secondary Sources Legal Periodicals and Law
Reviews

• There are also online databases available to
  university faculty and students using legal
  periodicals to research particular legal issues.
• Many law reviews are now maintaining a web
  presence and including the full text of articles
  from recent issues on their websites.
• Shepards citators can be used to find journal
  articles that cite a particular case or statute
  and to shepardize law review articles.

46
Secondary Sources Loose-Leaf Services

• Loose-leaf services may contain analysis of legal
  issues and reprints of primary source material in
  specific subject areas.
• They may serve as both a finding tool for primary
  authorities and as a secondary source.
• A loose-leaf service is a publication that is
  issued in a binder with removable pages.
• The information in these is current and much of
  the information needed to conduct research on a
  particular topic has already been compiled for
  the researcher.
• No two loose-leaf services are the same.

47
Secondary SourcesLoose-Leaf Services

• Newsletter Loose-Leaf Services
• A newsletter is issued regularly and added to the
  end of the binder.
• Newly released material supplements the older
  material in this format.
• Interfiled Loose-Leaf Services
• In this format, new pages are sent frequently for
  insertion into the binder.
• The new pages are interfiled and the old pages
  are discarded.

48
Computers and Legal Research

• Legal research is rapidly becoming computerized.
• The two primary computer-assisted legal research
  (CALR) systems are Wests Westlaw system and Reed
  Elseviers Lexis-Nexis.
• Advantages
• contain enormous amounts of information
• legal researcher can access the databases and
  navigate between them quickly
• the databases are updated constantly
• searching within particular databases is
  simplified
• the ease of moving from one primary or secondary
  source to another through linksCALR does not
  replace traditional legal research.
• CALR does not replace traditional legal research.

49
Computers and Legal Research

• The Westlaw and Lexis Nexis systems are organized
  into distinct databases.
• The primary difference between traditional legal
  research and computerized research is full-text
  keyword searching.
• Steps for using CALR systems
• The researcher first chooses the appropriate
  database within which to conduct the search.
• The researcher formulates a query by determining
  the keywords needed in the documents retrieved.
• Both of these systems are now accessible to
  subscribers on their websites.

50
Legal Research Strategies

• Step 1 Analyze the Problem
• The first task of the researcher is to analyze
  the problem and determine the most efficient
  manner to proceed.
• The researcher must decide what legal sources
  will be needed to answer the question
• Step 2 Conduct the Research
• The researcher must locate relevant primary
  source materials.
• The most important element is the location of one
  good case on the subject being researched.
• If a statute or relevant case citation is not
  available, the researcher should begin with
  secondary sources.

51
Legal Research Strategies

• Step 2 cont.
• The ability to move between the sources of law
  and pull together the relevant information is
  critical in this stage of research.
• Step 3 Evaluate the Results
• The final step of the research process is to
  evaluate the results.
• Since the law is constantly changing, it is
  critically important that the research be
  current.
• Bringing research up to date should be a
  continuous part of the process and a distinct
  part of the evaluation process.

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Chapter Three

• Legal Research on the Internet

53
Legal Research on the Internet

• The Internet offers the legal researcher a wealth
  of information and can be a useful adjunct to the
  law library.
• Through these resources on the Internet, it is
  possible to monitor current legislation and
  regulations on a state and federal level, as well
  as developments in the courts.
• The Internet is particularly useful because the
  researcher can access information quickly.
• Using the Internet, one can access the full
  opinion of the court within hours after it is
  announced.
• Analyses of the courts decision may be available
  almost as quickly.

54
Legal Research on the Internet

• Currently the Internet contains much of interest
  to the legal researcher, but it is not a
  substitute for the law library.
• Today all state appellate and federal court
  systems maintain websites that may post their
  decisions daily, but these opinions generally
  date back only 10 years and do not include
  editorial enhancements.
• The same is true of state and federal statutes
  available online.

55
The World Wide Web

• The World Wide Web has become the most flexible,
  commonly used, and rapidly growing component of
  the Internet.
• To access documents on the Web, an individual
  user must have a web browser to locate and
  display web pages.

56
Internet Research Tools

• Directories and Search Engines
• Two widely used tools for locating pages of
  interest on the Web are directories and search
  engines.
• Directories divide websites into categories and
  subcategories allowing the researcher to continue
  clicking to narrow the search.
• Search engines index pages from the Web and
  enable the researcher to search using keywords
  and advanced searching techniques.
• Entering legal terms will generally yield many
  results, of which very few may be useful.
• Legal search engines are growing in number.
• LawCrawler is user-friendly and does an excellent
  job of searching legal resources on the free
  Internet.

57
Internet Research Tools

• Online Communities
• Electronic mail, or e-mail, allows one user on
  the Internet to send messages to other users on
  the Internet.
• E-mail has made it easy to quickly and easily
  communicate and exchange information with others
  in a variety of ways.
• Discussion groups are a means of communicating
  simultaneously through e-mail with a group of
  recipients interested in similar information.
• A resource similar to discussion groups is the
  newsgroup or usenet
• This is essentially an electronic bulletin board
  of various newsgroups where comments and
  responses are posted, creating a thread on a
  particular topic.

58
Internet Research Tools

• Weblogs (Blogs)
• A typical weblog or blog is an electronic journal
  arranged in reverse chronological order that is
  updated frequently, usually dailoy.
• Highly respected law professors, attorneys, and
  law librarians are beginning to maintain
  law-related blogs, or blawgs, to present their
  opinions and analyses of legal issues.
• Free creation tools and hosting is available for
  those who wish to maintain a weblog, and weblog
  directories and search engines assist the
  researcher in locating blogs on particular
  topics.

59
Internet Research Tools

• Electronic Newsletters
• ED.gov is one example of the accessibility of
  electronic newsletters.
• On this website, you can search the archives or
  subscribe by e-mail to receive various weekly,
  biweekly, and monthly e-mail updates and
  newsletters addressing issues of interest to
  educators.
• It is now commonplace for professional
  associations and governmental entities to supply
  news of their activities through electronic
  newsletters and e-mail updates.

60
Law-Related Resources on the Internet

• Though there is not an abundance on material
  directly related to legal issues in special
  education, many websites contain important
  material on the law and special education.
• The Law and Special Education
• The purposes of The Law and Special Education
  website are to
• provide readers and instructors using the text
  with updates regarding legal developments in
  special education
• provide links to legal resources on the Internet
• provide access to special education statutes,
  regulations, and court cases
• provide instructors with ancillary materials

61
Law-Related Resources on the Internet

• Special Ed Connection
• Special Ed Connection is a fee-based Internet
  service, designed to serve as a reference center
  for subscribers who need to stay informed on
  special education issues.
• It allows subscribers to search its entire
  website or particular databases from its homepage
  and offers other advanced searching capabilities.
  
• Education Law Association (ELA)
• The Education Law Association (ELA) is a
  nonprofit organization that brings together
  educational and legal scholars and practitioners
  with a special interest in education law

62
Law-Related Resources on the Internet

• Wrightslaw
• Wrightslaw is a wesbsite with advocacy and law
  libraries that include links to cases, statutes
  and regulations, articles, newsletters, and other
  topical resources addressing special education
  law issues.
• The Council for Exceptional Children
• The Council for Exceptional Children (CEC) is the
  largest international professional organization
  dedicated to the education of students with
  disabilities.
• Its website provides news on legislation
  affecting special education and also maintains
  links to other online resources.

63
Government Resources Online

• Many useful websites for researchers interested
  in special education law are either sponsored in
  whole or part by the federal government or are
  produced by the federal government for the
  purpose of providing government information to
  its citizens.
• Government Sponsored Websites
• These websites serve as resource centers for
  those in the special education community.
• The U.S. Department of Education
• The U.S. Department of Education maintains a
  website that can be useful to teachers,
  researchers, and students.
• ED.gov contains information on the Education
  Department initiatives, resources for teachers
  and researchers, grants and funding
  opportunities, and Department of Education
  publications.

64
Government Resources Online

• Education Resource Information Center (ERIC)
• The Education Resource Information Center (ERIC)
  maintains a publicly accessible centralized
  database of more than 1 million citations to
  journal and non-journal literature dating back to
  1966.
• ERIC now allows for the use of both basic and
  advanced searching techniques.
• National Dissemination Center for Children with
  Disabilities
• The National Dissemination Center for Children
  with Disabilities (NICHCY) is a national
  information and referral center that provides
  information on disabilities and
  disability-related issues.
• Services include specialists to answer specific
  questions, publications on a number of topics,
  including legal issues and information searches.

65
Government Resources Online

• Cornucopia of Disability Information (CODI)
  Directory
• Cornucopia of Disability Information (CODI) is an
  Internet directory of disability information and
  library of electronic disability documents.
• The directory addresses various disability
  related topics.
• Discover IDEA
• Discover IDEA is a multimedia package that is
  essentially a navigational tool to help teachers,
  families, service providers, administrators, and
  policy makers understand the IDEA.
• It includes a CD, resource guide, and webpage.

66
Government Resources Online

• Government Publications
• Whereas all state governments now maintain
  websites that provide links to their primary
  sources available on the Web, special education
  law is governed largely by federal law.
• THOMAS Legislative Information on the Internet
• THOMAS is a free Internet service to provide
  users with federal legislative information.
• It employs a sophisticated searching system that
  is easy to use.
• THOMAS is updated daily as information becomes
  available, so it is indispensable to researchers
  monitoring pending federal legislation.

67
Government Resources Online

• GPO Access
• GPO Access is a service that provides free
  electronic access to more than 2,000 databases of
  federal information.
• GPO Accesss homepage includes a link to a
  comprehensive A-Z Resource List of official
  federal resources from all three branches of
  government as well as links to databases by
  branch.

68
Government Resources Online

• U.S. Courts The Federal Judiciary
• Many sites on the Internet direct the researcher
  to the official federal court websites.
• The official Federal Judiciary website,
  U.S.Courts.gov, provides convenient links to the
  U.S. Supreme Court, U.S. Court of Appeals, and
  U.S. District Court systems for each state.

69
Government Resources Online

• FirstGov
• In 2000, the U.S. government introduced FirstGov,
  a portal or gateway to state and federal
  government information.
• FirstGov offers a comprehensive search engine and
  a directory of links to millions of webpages from
  federal and state governments, the District of
  Colombia, and U.S. territories.
• FirstGov can be useful for researchers who wish
  to search for information on a topic across state
  and federal agencies.

70
Online Law Libraries

• Another means of locating legal information on
  the Internet is by visiting an online law
  library.
• University law school websites generally include
  links to their law library sites, which provide
  online directories of legal resources.
• They will often have information on state rules,
  regulations, and court decisions.
• Legal Information Institute (LII) Cornell
  University Law School
• The Legal Information Institute is an
  internationally known provider of public legal
  information.
• Its databases include the opinions of the U.S.
  Supreme Court since 1992, the full United States
  Code, and a series of topical pages about many
  areas of law.

71
Online Law Libraries

• JURIST Legal News and Research
• 1. JURIST is a legal news and legal research
  website provided as a public service.
• 2. Paper Chase is a real-time legal news weblog.
• 3. The Research tab links researchers to official
  government websites for judicial opinions and
  legislation, provides a quick reference guide to
  constitutional and legal systems around the
  world, and provide a guide to celebrated historic
  trials.
• 4. There is also a directory of legal journals
  from accredited law schools.
• Both are part of the Coalition of Online Law
  Journals, which supports the University Law
  Review Project, a website that provides full-text
  searching of online law journals and abstracts of
  new law review articles by e-mail.

72
A Strategy for Legal Research on the Internet

• Research on the Internet demands an awareness of
  what you need and knowledge of where to look for
  it.
• Research demands that users be focused, that they
  have a specific goal or question in mind, and
  that they proceed systematically to locate
  pertinent information on that question.
• The Internet does not replace the law library,
  but is a useful adjunct to it.

73
A Strategy for Legal Research on the Internet

• Preparing for Research
• The first step in conducting research is to focus
  yourself by developing a goal or constructing a
  research question.
• Then ask yourself what information will be needed
  and where it can be found.
• Organizing Your Hard Drive or Data Disk
• It is useful to organize your hard drive or a
  data disk so that you can download the
  information you locate and place it in an easily
  accessible location.
• It is also important to bookmark all websites
  where you find pertinent or potentially useful
  information.
• It is also necessary to back up all of your work.

74
A Strategy for Legal Research on the Internet

• Conducting the Research
• Once youve determined what you need, begin a
  systematic search of the Internet.
• It is important to stay focused on your research.
  
• Locating Information
• One of the most common ways of locating
  information on the Internet is through the use of
  what computer users call the tree structure.
• Tree structures refer to the structure of data on
  computers where there is an initial or root
  directory and branches of directories and
  subdirectories.
• A good starting point for legal research is one
  of the Web pages listed in the text of The Law
  and Special Education homepage.

75
A Strategy for Legal Research on the Internet

• Conducting an Internet Interview
• Legal researchers often depend on the interview
  for information about a specific topic.
• The use of e-mail for conducting interviews is
  the latest and one of the most successful online
  research tools.
• E-mail allows for asynchronous communication,
  which increases its convenience.
• If you are doing research on an unfamiliar topic,
  finding a source for an interview on the Internet
  is not difficult.
• Prior to posting a question on a listserv or
  other group, have some basic information about
  your research area, to ensure that your question
  is focused.
• Another method for locating contacts is through
  your library research.
• The Internet is one of the best places to network
  with other researchers or persons knowledgeable
  about the area in which you are interested.

76
A Strategy for Legal Research on the Internet

• Evaluating the Data
• Knowing when to stop collecting data can be a
  problem with any type of research but it is a
  particular problem when researching on the
  Internet.
• This is because there is a vast amount of
  information on the Internet that is just a click
  away.
• It is important to only collect what you need and
  discard any irrelevant information.
• When evaluating data found on the Internet it is
  extremely important that you determine the
  credibility of the data you have collected.
• Print out a copy of the information you use,
  keeping in mind that information available on the
  Internet can disappear as quickly as it appeared.

77
Chapter Four

• The History of the Law and Children with
  Disabilities

78
The History of the Law and Children with
Disabilities

• The educational rights of children and youth with
  disabilities were gained largely through the
  tireless efforts of parents and advocacy groups
  in the courts and legislatures of this country.

79
Compulsory Attendance

• In our country, public education is viewed as a
  birthright
• A common misconception is that public education
  is guaranteed by the Constitution, but it is not.
  
• Education is left to the responsibility of the
  states.
• By 1918, compulsory education laws were in place
  in all states.
• However, children with disabilities were often
  excluded from public schools despite these laws.

80
The Exclusion of Students with Disabilities

• The continued exclusion of students with
  disabilities was upheld in the courts.
• In one case, the court acknowledged the conflict
  between compulsory education and the exclusionary
  provisions, but it did not rule to resolve this
  conflict.
• Despite compulsory attendance laws, states
  continued to enact statutes that specifically
  authorized school officials to exclude students
  with disabilities.
• As recently as 1958 and 1969, the courts upheld
  legislation that excluded students who school
  officials judged would not benefit from public
  education or who might be disruptive to other
  students.

81
Parental Advocacy

• Parents led the way in seeking educational rights
  for their children with disabilities.
• The parental advocacy movement reflected changes
  in the social climate of this country at the turn
  of the 20th century.
• The White House Conference of 1910
• The first White House Conference on Children in
  1910 focused national attention on children and
  youth with disabilities.
• A primary goal of this conference was to define
  and establish remedial programs for children with
  disabilities or special needs.
• The conference led to an increased interest in
  educating children with disabilities in public
  school settings rather than institutionalizing
  them.

82
Parental Advocacy

• Public School Programming
• The number of special segregated classes and
  support services in public schools increased
  significantly from 1910 to 1930.
• Public school educators believed that segregated
  classes were beneficial to children with
  disabilities.
• Despite these changes, many children and youth
  with disabilities remained unidentified and
  continued to struggle in regular classrooms.
• Also, many students with disabilities did not
  benefit from public school education because they
  had dropped out, been expelled or excluded from
  school, or considered unteachable.
• Many factors contributed to the decline in
  support for and provision of special education
  classes for students with disabilities.
• The special classroom placements became as
  restrictive and custodial as placements in
  institutions had been.

83
Parental Advocacy

• The Organization of Advocacy Groups
• Parents began to band together to advocate for
  their childrens education rights.
• The advocacy movement was critical to the
  development of special education services.
• The interest groups provided information,
  stimulus, and support to Congress when
  considering, developing, and acting on
  legislation.
• The National Association for Retarded Citizens
• This organization started with 42 parents and
  concerned individuals and has become a powerful
  and significant organization of parents,
  families, and other people interested in
  improving services for people with mental
  retardation.
• Its mission is to provide information to
  concerned individuals, monitor the quality of
  services for individuals with mental retardation,
  and advocate for the rights and interests of
  individuals with mental retardation.

84
Parental Advocacy

• The Council for Exceptional Children
• This is a professional organization concerned
  with the education of children with special
  needs.
• It has become a longtime advocate for the
  educational rights of children and youth with
  disabilities and has been a leader in the
  movement to obtain these rights at the federal
  and state levels.
• The Association for Persons with Severe
  Handicaps
• This is another organization that has provided
  strong support for individuals with disabilities.
  
• It disseminates information on best practices,
  publishes research reports, and supports the
  rights and humane treatment of persons with
  severe and multiple disabilities through active
  involvement in court cases.

85
Parental Advocacy

• Additional Advocacy Groups
• Other advocacy groups founded primarily by and
  for parents and families of individuals with
  disabilities include the United Cerebral Palsy
  Association, Inc., the National Society for
  Autistic Children, the National Association for
  Down Syndrome, the Association for Children with
  Learning Disabilities, the Federation of Families
  for Childrens Mental Health.
• The progress made in special education can be
  attributed in great part to the success of
  parents as advocates for their children.

86
The Civil Rights Movement and Brown v. Board of
Education

• The civil rights that are protected under the
  Constitution and enforced by legislation have not
  been provided to all citizens on an equal basis.
• The civil rights movement in the 1950s and 1960s
  led to litigation and changes in legislation.
• This legislation provided greater protection for
  minorities, and eventually for persons with
  disabilities.
• A landmark case, Brown v. Board of Education, was
  a major victory for the civil rights movement and
  became the major underpinning for further civil
  rights action.
• The Brown decision also effected many aspects of
  educational law and procedure.
• In Brown, the high court reasoned that segregated
  public schools denied students equal education
  opportunities.
• This was considered by many to be equally
  applicable to those denied equal opportunity to
  an education because of a disability.

87
The Civil Rights Movement and Brown v. Board of
Education

• Parental Advocacy in the Wake of Brown
• Advocates for students with disabilities cited
  Brown and claimed that students with disabilities
  had the same rights as students without
  disabilities.
• First, they pointed out that there was an
  unacceptable level of differential treatment
  within the class of children of disabilities.
• Second, they argued that some students with
  disabilities were not furnished with an
  education, whereas all students without
  disabilities were provided an education.

88
The Equal Opportunity Cases

• Sixteen years after the Brown decision, two
  seminal federal district court cases applied the
  concept of equal opportunity to children with
  disabilities.

89
The Equal Opportunity Cases

• Pennsylvania Association for Retarded Citizens v.
  Pennsylvania, 1972
• In January 1971, the Pennsylvania Association for
  Retarded Children (PARC) against the Commonwealth
  of Pennsylvania in a federal district court.
• The plaintiffs argued that students with mental
  retardation were not receiving publicly supported
  education because the state was delaying or
  ignoring its constitutional obligations to
  provide a publicly supported education for these
  students, thus violating state statute and the
  students rights under the Equal Protection of
  the Laws clause of the 14th Amendment of the
  Constitution.
• PARC was resolved by consent agreement specifying
  that all children with mental retardation between
  the ages of 6 and 21 must be provided a free
  public education and that it was most desirable
  to educate children with mental retardation in a
  program most like the programs provided for their
  peers without disabilities.

90
The Equal Opportunity Cases

• Mills v. Board of Education, 1972
• A class action suit, Mills v. Board of Education,
  was filed against the District of Colombias
  Board of Education on behalf of all out-of-school
  students with disabilities.
• This was brought about for 7 children with
  disabilities, which counted as a class, so they
  represented over 18,000 students who were denied
  or excluded from public education in D.C.
• The suit charged that the students were
  improperly excluded from school without due
  process of law.
• The court held that the total exclusion of
  students with disabilities was unconstitutional.
• The court ordered the district to provide due
  process safeguards, and the court clearly
  outlined due process procedures for students with
  disabilities.

91
The Equal Opportunity Cases

• Additional Cases
• The PARC and Mills decisions set precedent for
  similar cases to be filed across the country.
• Despite judicial successes, many students with
  disabilities continued to be denied an
  appropriate public education.
• By the 1970s, the majority of states had passed
  laws requiring that students with disabilities
  receive a public education, but these laws varied
  substantially.

92
Early Federal Involvement

• The first significant federal involvement in the
  education of students with disabilities occurred
  in the late 1950s and early 1960s.
• These included the Education of Mentally Retarded
  Children Act of 1958, the Training of
  Professional Personnel Act of 1959, and the
  Elementary and Secondary Education Act (ESEA) of
  1965.
• An amendment to the ESEA, Title VI, added funded
  for grants for pilot programs to develop
  promising programs for children with
  disabilities.
• The Education of the Handicapped Act (EHA) of
  1970
• This act replaced the Title VI and became the
  basic framework for much of the legislation that
  was to follow.
• Its purpose was to consolidate and expand the
  previous federal grant programs and to continue
  funding pilot projects at the state and local
  levels.

93
Early Federal Involvement

• Section 504 of the Rehabilitation Act of 1973
• Section 504 of this act was the first federal
  civil rights law to protect the rights of persons
  with disabilities.
• It mirrored other federal civil rights laws that
  prohibited discrimination by federal recipients
  on the basis of race and sex.
• Its purpose was to prohibit discrimination
  against a person with a disability by any agency
  receiving federal funds.
• The Education Amendments of 1974
• These were amendments to the EHA, which required
  that each state receiving federal special
  education funding establish a goal of providing
  full educational opportunities for all children
  with disabilities.
• This was significant legislation for both
  children with disabilities and children who are
  gifted and talented.

94
Early Federal Involvement

• The Education for All Handicapped Children Act
  (EAHCA) of 1975
• This act combined an educational bill of rights
  with the promise of federal financial incentives
  to assure all qualified students with
  disabilities a special education.
• It mandated that qualified students with
  disabilities had the right to a nondiscriminatory
  testing, evaluation, and placement procedures
  education in the least restrictive environment
  procedural due process, including parent
  involvement a free education and an appropriate
  education.
• The Handicapped Childrens Protection Act of 1986
• This act amended the EAHCA, granting courts the
  authority to award attorneys fees to parents or
  guardians if they prevailed in their actions
  pursuant to the law.

95
Early Federal Involvement

• The Infants and Toddlers with Disabilities Act
  (ITDA) of 1986
• This law made categorical grants to states
  contingent on their adhering to the provisions of
  ITDA.
• It required participating states to develop and
  implement statewide interagency programs of early
  intervention services for infants and toddlers
  with disabilities and their families.
• The centerpiece of this act is the individualized
  family services plan (IFSP)
• The act also created financial incentives for
  states to make children with disabilities
  eligible for special education at age 3.

96
Early Federal Involvement

• The Individuals with Disabilities Education Act
  of 1990
• This amendments renamed the EAHCA to the
  Individuals with Disabilities Education Act
  (IDEA).
• These amendments substituted the term disability
  for the term handicap throughout the law.
• IDEA 1990 required that individualized transition
  planning be included in the individualized
  education programs (IEPs) of students with
  disabilities who were 16 years or older.
• Transition activities must be based on students
  individual needs and take into account their
  preference and interests.

97
Recent Federal Involvement

• The IDEA Amendments of 1997
• These amendments were passed to reauthorize and
  make improvements to the IDEA.
• The changes ensured that students with
  disabilities received a quality public education
  through emphasizing the improvement of student
  performance.
• The No Child Left Behind (NCLB) Act
• This law, which is the most recent
  reauthorization of the ESEA, expanded the role of
  the federal government in public education by
  holding states, school districts, and schools
  accountable for producing measurable gains in
  students achievement in reading and mathematics.
• Students with disabilities were included in
  NCLBs assessment and accountability systems.

98
Recent Federal Involvement

• The Presidents Commission on Excellence in
  Special Education
• The commission recommended reforms to improve
  special education and to bring it into alignment
  with NCLB by requiring special education to be
  accountable for results and to rely on
  scientifically based programming.
• The commission concluded that special education
  had created an important base of civil rights and
  legal protections for students with disabilities,
  but it needed fundamental changes, a shift in
  priorities, and a new commitment to individual
  student needs.
• The commissions recommendations were that
• special education must focus on results rather
  than process and be judged by the outcomes
  students achieve
• special education must embrace a model of
  prevention, not a model of failure
• both special education and general education
  systems must work together to provide strong
  teaching and effecting interventions for children
  with disabilities

99
Recent Federal Involvement

• The Individuals with Disabilities Education
  Improvement Act of 2004
• The IDEA 2004 built upon NCLB by emphasizing
  increased accountability for student performance
  at the classroom, school, and school district
  levels.
• There are changes in many areas, including the
  IEP, discipline, and identification of students
  with learning disabilities.

100
State Education Statutes

• With the passage of the EAHCA, special education
  became essentially federally controlled.
• States were not required to follow the EAHCA
  requirements, but by choosing not to, a state
  would forfeit federal funding for special
  education.
• All states have chosen to comply with the federal
  regulations based on the EAHCA.
• Some states developed statutes and regulations
  that expanded the federal special education
  requirements.
• States set their own regulations specifying
  teacher certification regulations, teacher-pupil
  ratios, transportation time, and age-span
  requirements in the classroom.
• States were also allowed some flexibility in
  funding mechanisms.

101
The History of Special Education Law From Access
to Accountability