Understanding Children’s Rights in School (Components of Section 504 and IDEA Protections)

Dr. Diane Haggis

Navigating the school system and understanding what protections exist for children with special needs can be a daunting task. But understanding those protections is critical for parents who must advocate for their children – ensuring that the child is receiving every protection he is entitled to under the law.

Two specific protections for students with disabilities are included in federal law: Section 504 and IDEA (Individuals with Disabilities Education Act). Both provide protections and a free and appropriate education for all disabled students. Both are mandated in all states. State law can mandate moreprotection than the federal law requires but the states cannot provide less. IDEA is overseen by the U.S. Department of Education – specifically the Bureau of Special Education and Section 504 is an anti-discrimination law directed by the Office of Civil Rights.

IDEA was created in 1990 and eauthorized in 2004. This is an extensionof the Education for All Handicapped Chlldren's Act which was enacted by the U.S. Congress in 1975.  The law ensures that special needs children receive their education under FAPE (Free and Appropriate Public Education). These children are entitled to receive this free public education in the least restrictive environment necessary to meet their individual needs. This is a federal law binding in all states. IDEA guarantees that children with disabilities receive their education at no cost to the families; that this education be in the least restrictive environment possible to meet their needs; that they are provided with an appropriate assessment to determine the child's needs - and with parental informed written consent; and that they receive supplementary aids and services including any support services that assist them in benefiting from their educational program. This includes an Individualized Education Program (IEP) which must be written annually for all children with disabilities. According to Peter Wright, who wrote the book "Special Education Law" (2016), "IDEA 2004 requires schools to use proven methods of teaching and learning based on replicable research. The most important statute in IDEA is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for future education, employment and independent living." Wright goes on to explain that if a child's disability adversely affects educational performance, this child would be covered under IDEA protections.

IDEA lists 13 different disability categories under which 3 to 21 year olds may be eligible for services including: autism, deafness, intellectual disability, orthopedic impairment, specific learning disability, and an Other Health Impaired category. Other Health Impaired means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educaional environment, and that is due to continuing or severe health problems that unfavorably affects a child's learning.  Additionally, all qualified children from preschool through age 21 are eligible for services specific to their individual needs.

Additionally, under IDEA, a process exists that allows for a system to address any disagreements between guardians and the school district; specifically, a due process hearing. These hearings ensure that there are no changes made to a child’s program without prior notice to the parents and also provides a mechanism to resolve disagreement and disputes. The law requires that the school district try to resolve disputes prior to going to the state department of education for a due process hearing but there are special timelines that are required for action from the school district. IDEA requires that the school district set up a resolution meeting within 15 days of receiving notice that a parent has filed a due process complaint. There is then a 45-day timeline to reach a decision in the hearing. If unresolved, the matter goes to the department of education for resolution.       

Section 504 is a civil rights law. The law applies to students and other individuals with disabilities. In his book, Wright reports that Section 504, however, does not have the same legal protections as defined in the special education law under IDEA. Although all special education students are automatically covered under Section 504, students with a 504 plan are not automatically covered under IDEA. Plans developed under Section 504 are developed to allow accessibility to buildings, modifications and accommodations in testing situations, and protects against discrimination  these protections would include exclusion from school activities – for example not allowing children with disabilities to participate in school field trips. Section 504 requires the school to develop an evaluation that draws from a variety of sources including observations and parent and teacher input. This evaluation does not have to be written. 504 does not require written prior notice or a meeting before any changes of placement,only parental notification, and it does not provide for an Individualized Education Plan. The Office of Civil Rights has interpreted Section 504 to require districts to obtain parental permission for initial evaluations but again, those evaluations do not have to be written. There is a complaint process with Section 504 but it is through the Office of Civil Rights and not through the local education system. OCR has the authority to investigate complaints claiming a covered entity was discriminated based on: race, color, national origin, ethnicity, or ancestry; sex or gender; or disability. A parent or guardian may file a complaint with the school district’s 504 Coordinator. If unresolved, a complaint may be filed with the Office of Civil Rights in Washington, D.C.

Therefore, a child with a disability has specific protections under the law. Both Section 504 and Special Education law, IDEA, provide for individual protection and services for students with disabilities. Understanding those rights is paramount to helping to provide a strong program for a child in order for him to benefit from educational programs that specifically meet their individual needs.

References:

A Parent Guide to Special Education, the IEP Process and School Success (2016). Retrieved from:www.understandingspecialeducation.com
National Dissemination Center for Children with Disabilities. Categories of Disability Under IDEA (2012). Retrieved from: http://www.parentcenterhub.org/wp-content/uploads/repo_items/gr3.pdf
US Department of Education.(2016). Parent and Public Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools. Retrieved from: http://www.wrightslaw.com/images/inhouse/ocr.parent.guide.504.png
US Department of Education (2016). Retrieved from: https://www2.ed.gov/about/offices/list/ocr/complaintprocess.html
Wright, P. (2016). Special Education Law. Hartfield, VA: Harbor House Law Press, Inc.

Dr. Diane Haggis Biography
Dr. Diane Haggis, author of the BHB Theory (Bonding, High Expectations and Belief in Success) has over thirty six years of experience in education, twenty of which was spent with special education populations and troubled youth.  As an administrator in three institutional settings for at risk youth, and within her doctoral work, the BHB theory was developed which identifies what teachers of troubled youth do to create a positive learning environment for their students. The theory offers a valuable guide in how to strengthen teacher practice for enhancing student skill sets necessary for academic success in alternative education programs. Dr. Haggis is a published author including a manuscript for the Contemporary Issues in Education Research Journal. Her work includes advocacy for all special education students as she presents workshops on both her BHB theory and on Children’s Rights Under the Law.
www.BHBeducationconsulting.com
BHB.Educationconsulting@outlook.com