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I am a college student enrolled in the Guidance and Counseling program at Angelo State University. My future profession will include teaching for a few years before moving into a school counselor position at either an elementary or middle school. This Legal Guide Padlet is about Individuals with Disabilities Education Act (IDEA) Requirements and Practices for School Counselors. Its intended audience are school counselors, educators, administrative staff, and also parents. The information in this padlet can be very resourceful to anyone working with students with disabilities, especially in a school setting. Hopefully this padlet will help them understand the current IDEA legal requirements, as well as the role and commitment each school counselor has to their students. I chose this topic because of its importance to public schools, as there are more than seven million students with disabilities in our schools today. This means the likelihood of encountering a student with special needs or disabilities is very high. As a future school counselor, it will be my job to support the social, emotional, academic, and career development of all students including those with disabilities and/or special needs. This is a great way to become more informed and well-versed with this topic/requirement prior to stepping into the role.

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My interview was with the Counselor at Austin Elementary School, Mrs. Jana Castro. I asked Mrs. Castro some questions about her requirements and practices regarding IDEA as a current school counselor.

Can you tell me how this legal issue impacts your work?

IDEA is important to every school staff member, including school counselors, and requires that every counselor/campus ensures that all students are receiving an education in the least restrictive environment (LRE), regardless of the student’s abilities.

What are some best practices related to IDEA guidelines?

Providing school counseling curriculum lessons, individual and/or group counseling to students with special needs within the scope of the school counseling program

Providing short-term, goal-focused counseling in instances where it is appropriate to include these strategies as a part of the Individualized Education Plan (IEP) or 504 plan.

Encouraging family involvement in the educational process.

Consulting and collaborating with staff and families to understand the special needs of a student and understanding the adaptations and modifications needed to assist the student.

Advocating for students with special needs in the school and in the community.

Contributing to the school’s multidisciplinary team within the scope and practice of the school counseling program to identify students who may need to be assessed to determine special education or 504 plan eligibility.

Are there legal requirements or compliance issues you regularly monitor or have to be attentive to in this area?

Special education, 504, and EL are regular accommodations that must be followed by all staff members that are in direct contact with any student with disabilities.

Are there any policies or rules you have currently written or revised related to this issue?

No, not at my level. Any of this would be done at the district level.

Do court cases related to IDEA and their decisions impact your work?

This does not impact my work currently

Is there current or pending legislation related to this issue?

Current or pending legislation related to IDEA is as follows:

IDEA Full Funding Act was introduced into Senate (03/13/2018)

This bill amends the Individuals with Disabilities Education Act to reauthorize and make appropriations for the grant program to assist states and outlying areas in providing special education and related services to children with disabilities.

The bill sets the amount to be appropriated for each fiscal year from FY2018-FY2026 as the greater of: (1) a specified amount, or (2) a specified percentage of an amount determined pursuant to a formula that multiplies the number of children receiving special education services by the average per-pupil expenditure in public elementary and secondary schools. The bill appropriates funds for FY2027 and each subsequent fiscal year equal to the greater of a specified amount or 40% of the amount determined using such formula (Congressional Research Service, 2017).

Are there certain student or employee rights that relate to this issue?

IDEA does not provide legal rights to teachers, with a few exceptions (for example, you should have access to your students’ IEPs).

Can you share a situation related to this issue and how you resolved it?

In some cases, teachers may have not received an updated IEP or 504 plan or unaware of changes that need to be put in place. Using best practices, we use an Accommodation Plan Distribution page where teacher have to sign and date that they received the appropriate information.

Have you attended or provided any trainings recently on this topic, what?

No, not specifically related to the topic.

How do you stay current on this topic?

As a district, any information that needs to be shared would be sent through email but no formal meetings take place.

(J. Castro, personal communication, October 1, 2019).

Congressional Research Service. (2017). Idea full funding act. Retrieved from https://www.congress.gov/bill/115th-congress/senate-bill/2542

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Counselor's Corner

Jana Castro - Guidance Counselor

jan a.castro@saisd.org

659-3636, ext 121

How Can I Help My Child Succed?

Read Everyday! Take turns at reading to your child and having your child read to you, asking questions to promote comprehension skills.

Be positive, speaking well of school and learning. Encourage your child to talk about all of the fun things they have done or are going to do at school.

Create a consistent after-school routine including meal times, homework, and playtime (creating a visual display of this for your child can be very beneficial).

Ensure your child is getting plenty of sleep on a school night, so they are fresh for school in the morning.

Encourage your child in all aspects of academics, praising them in both their academics and their success.

Teach your child to be responsible in their actions, encourating them to take responsibility for getting ready.

Stay involved! If interested, inquire about ways to support your child's learning at home.

Communicate! Keep in regular contact with your child's teacher.

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Welcome to Austin Elementary! A Positive Place to Learn! - Counselor's Corner

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Counselor's Corner Jana Castro - Guidance Counselor jan a.castro@saisd.org 659-3636, ext 121 How Can I Help My Child Succed? Read Everyday! Take turns at reading to your child and having your child read to you, asking questions to promote comprehension skills. Be positive, speaking well of school and learning.

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American School Counselor Association

School counselors support their students through their academic, career and social/emotional developments. They are committed to helping all students, including those with disabilities and other special needs, reach their full potential despite any challenges they may have. School counselors implement best practices when working with students with disabilities, while also recognizing the strengths and limitations often accompanied with this group of students. IDEA defines a disability as anyone with autism, deafness, blindness, developmental delay, emotional disturbance, intellectual disability, orthopedic, speech, language, or any health impairments, learning disability, or traumatic brain injury. School counselors provide both direct and indirect services to students in the LRE determined by their IEPs (American School Counselor Association, 2016). This is a great resource on the responsibilities school counselors have within IDEA requirements.

American School Counselor Association. (2016). The school counselor and students with

disabilities. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_Disabilities.pdf

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This article discusses an investigation of admission policies at the New College of Florida, who by their former admissions dean, discriminated against students with mental health issues.

IDEA requirements are not the same for college students. Section 504 of the Rehabilitation Act of 1973 still protects college students from discrimination. Students can receive accommodations, but must seek out the support they need being more of a self-advocate versus a staff member or counselor advocating on their behalf.

The dean of enrollment management, Dr. Joy Hamm, had applicants who wrote about mental health issues flagged for a special review. Some of them were rejected even if they met the requirements for admission.

The U.S. Education Department, during the Obama administration, published guidance for students and colleges on transitions to postsecondary education for students with disabilities. The guidance says that disability status cannot be the reason for rejection.

Dr. Hamm was replaced and New College of Florida is implementing a comprehensive review of the admissions process to ensure that all applicants, including those who disclose a disability or mental illness, are treated fairly and equitably in accordance with transparent admissions criteria (Jaschik, 2019).

Jaschik, S. (2019). College found to discriminate on mental health. Retrieved from https://www.insidehighered.com/admissions/article/2019/08/27/new-college-florida-found-discriminate-against-applicants-mental

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An investigation by the inspector general of Florida's university system has found that the admissions policies of New College of Florida probably discriminated against applicants with mental health issues.

Colleges may not ask if students have a mental health issue, but it is common for students to write about them -- including on their college applications. Under federal and state antibias laws, mental illness may not be ground for discrimination.

In the case of New College, the dean of enrollment management (replaced last week) had admissions readers flag those applicants who wrote about mental health issues for a special review, the inspector general found. Some of them were rejected -- even if they met the requirements for admission.

President Donal O'Shea, in a posted video, said, "I'm deeply embarrassed" by the findings and pledged "to set a new standard" for inclusiveness.

Whatever O'Shea's feelings about the admissions process now, they were not his feelings when students -- Maria Simmerling, Eugenia Quintanilla and Dwight Mann -- complained about the system. In fact, New College conducted its own investigation of admissions last year and concluded that nothing was wrong. (He's praising the students now.)

New College is a public institution in Florida, and it stands out for having the size and approach of a liberal arts college in a state where public universities tend to be large with many graduate and professional programs. The college has a strong academic reputation.

The students have posted a copy of their complaint online. They describe working in admissions out of their love for the college, but also their dismay on discovering in 2017 that there was a new policy to place red flags on the applications of people with disabilities for the purpose of "weeding out" such applicants.

They write that they tried to discuss the issue in the admissions office and filed a formal complaint with the college only when they were shut down.
What the Investigation Found
The inspector general's report started with some basics. New College uses the Common Application and divides candidates into five categories: deny, hold, misconduct, committee and admit. The candidates are placed in the categories based on numerical scores on the Common Application given by New College.

"All of the readers for the 2018 admissions cycle provided testimony indicating that Dr. [Joy] Hamm expressed to admissions staff, during meetings held in preparation for that admissions cycle, that she wanted them to 'red-flag' admissions applications if the applicant disclosed certain information in their application file," said the report of the inspector general. "Some witnesses stated Dr. Hamm wanted them to 'red-flag' applications for any mention of mental or physical disability, or mental illness; while others noted that references to a history of abuse, violence perpetrated against or by the applicant, or anything that might lead the reader to believe the applicant is difficult or has problems with respecting others could also be 'red-flagged.'"

Hamm was dean of enrollment management until Friday. She was not reachable to discuss the report's findings, but she provided a very different explanation to the inspector general.

"Dr. Hamm emphatically denied providing the alleged instructions," the report said. "She indicated she came into a broken system wrought with student conduct issues, wasteful or inefficient admissions recruitment practices, unclear admissions decision processes, and unprofessional behavior and policy violations by various admissions staff. She indicated she had to make changes quickly, in terms of stricter policies and oversight, physical reorganization of staff, and increased accountability, which were not well accepted by staff and earned her 'fast hatred.'"

In one year reviewed, 22 applications with a score judged worthy of admission were instead screened because they had included mention of a mental illness. Thirteen were admitted; nine were denied admission.

"Despite Dr. Hamm's denial, witness testimony indicated the admissions staff, particularly the readers, received instructions and/or guidance from Dr. Hamm to 'red-flag' application files that contained disclosures related to a mental health issue or a disability so that the Admissions Review Committee could review the files and make an admissions decision," the inspector general said.

Included in the report is a letter from O'Shea.

"The draft report has been a significant catalyst for institutional self-reflection and change," O'Shea said. "New College has already taken action to change the leadership of the enrollment management department. Further, college officials are implementing a comprehensive review of the admissions process to ensure that all applicants, including those who disclose a disability or mental illness, are treated fairly and equitably in accordance with transparent admissions criteria."
Guidance for College and Students
The U.S. Education Department, during the Obama administration, published guidance for students and colleges on transitions to postsecondary education for students with disabilities.

The guidance says that disability status cannot be the reason for rejection. "If you meet the essential requirements for admission, a postsecondary school may not deny your admission simply because you have a disability," says the guidance. It goes on to say that there is no obligation by an applicant to inform a college of a disability unless it is part of a request for an academic adjustment related to the disability.

The ethics code of the National Association for College Admission Counseling states, "We believe our members have a responsibility to treat one another and students in a fundamentally fair and equitable manner. Our institutional and individual members strive to eliminate from the education system bias based on race, ethnicity, creed, sex, gender identity, sexual orientation, socioeconomic status, age, political affiliation, national origin or disability. We view this as fundamental to our responsibility as educators."

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New College of Florida found to discriminate against applicants with mental health issues

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An investigation by the inspector general of Florida's university system has found that the admissions policies of New College of Florida probably discriminated against applicants with mental health issues. Colleges may not ask if students have a mental health issue, but it is common for students to write about them -- including on their college applications.

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This article discusses how students with disabilities, particularly black students, are being suspended at a higher rate than their peers. Missing three times as many days of school in suspension than white classmates with disabilities.

These suspensions are greatly increasing the likelihood a student will be in the criminal justice system behind missing so much school according to research.

Data from Mississippi’s 2015-16 school year, reports113 days of school were missed for every 100 black students with disabilities, compared to 44 for their disabled white classmates (Mader, 2018).

Students with emotional disturbances and learning disabilities in the juvenile system make up 70 percent of the population.

It was reported the problem was lack of training for teachers, and a shortage of counselors.

If teachers are not trained to deal with students with disabilities, then IDEA practices are not being met.

If there are not enough counselors present and available, then there is a shortage of qualifying staff to advocate for students with disabilities.

Under IDEA and FAPE students must be granted due process hearings. Without a proper hearing, students with disabilities cannot be suspended for more than two days at a time (Paterson, 2018).

Mader, J. (2018). Why are these mississippi students missing so much school? Retrieved from https://hechingerreport.org/why-these-mississippi-students-are-missing-so-much-school/

Paterson, J. (2018). Students with disabilities miss 'opportunities to learn' when suspended. Retrieved from https://www.educationdive.com/news/students-with-disabilities-miss-opportunities-to-learn-when-suspended/523156/

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Dive Brief:

A Report article discusses the findings of a recent study showing students with disabilities are being suspended at a higher rate than their peers, particularly black students with disabilities who miss three times as many days of school in suspension than white classmates with disabilities.

The study's authors wrote that the missed time results in "huge inequities in the opportunity to learn", citing other research showing such suspensions greatly increase the likelihood a student will be in the criminal justice system.

The researcher's report points to data from Mississippi where, during the 2015-16 school year, for every 100 black students with disabilities 113 days of school were missed compared to 44 for their disabled white classmates.

Dive Insight:

One study shows that students with disabilities are dramatically over represented in the juvenile justice system, perhaps making up 70% of that population, most with emotional disturbances and learning disabilities.

While numbers vary according to methods of reporting and students moving in and out of the juvenile justice system, the Hechinger Report has also reported that while 13% of students in the Mississippi's public schools are in special education programs, in one youth juvenile detention facility 27% were designated as having disabilities, while at another 50% qualified for special education.

The PACER Center has reported the problem is connected to a lack of training among teachers and another report says a lack of special education teachers contributes. A counselor shortage also plays a role.

The prison lobby influences school policies about discipline, according to reports, by advocating for harsh punishments for small infractions - including referrals to police for violations such as ignoring the school dress code and stealing a soda from a teacher lounge.

A Harvard University education school lecturer has said that the school-to-prison pipeline causes African-American students to be three times more likely to be suspended or expelled - and that then those students are three times as likely to fall into the juvenile justice system. They are 11% of the population yet 31% percent of the students suspended.

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Students with disabilities miss 'opportunities to learn' when suspended

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A Report article discusses the findings of a recent study showing students with disabilities are being suspended at a higher rate than their peers, particularly black students with disabilities who miss three times as many days of school in suspension than white classmates with disabilities.

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Slide #6 Judicial Law: Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)

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Slide #6 Judicial Law: Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)

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Board of Education v. Rowley is the case of Amy, a deaf kindergarten student and her parents who with the school developed an individualized education plan (IEP) which included an interpreter.

The school failed to see the need for the interpreter and thought a hearing aid, tutoring, and speech therapy was sufficient.

Her parents argued that without the interpreter, Amy was only understanding about 60 percent of all information/instruction.

The court ruled in favor of the school since Amy was actually learning.

The Rowley Two-Part was designed and determined whether FAPE is being met according to a student’s IEP. Students did not need to have maximum support as long as there was enough to receive educational benefits.

School counselors provide both direct and indirect services to students in the LRE determined by their IEPs. One responsibility of school counselors may include short-term, goal-focused counseling in instances where it is appropriate to include these strategies as a part of the student’s IEP or 504 plan (Board of Ed. Of HHCD V. Rowley, 1982).

Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982)

https://www.law.cornell.edu/supremecourt/text/458/176

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458 U.S. 176

102 S.Ct. 3034

73 L.Ed.2d 690

BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT BD. OF ED., WESTCHESTER COUNTY, et al., Petitioners
v.
Amy ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley etc.

No. 80-1002.

The Education of the Handicapped Act (Act) provides federal money to assist state and local agencies in educating handicapped children. To qualify for federal assistance, a State must demonstrate, through a detailed plan submitted for federal approval, that it has in effect a policy that assures all handicapped children the right to a "free appropriate public education," which policy must be tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). The IEP must be prepared (and reviewed at least annually) by school officials with participation by the child's parents or guardian. The Act also requires that a participating State provide specified administrative procedures by which the child's parents or guardian may challenge any change in the evaluation and education of the child. Any party aggrieved by the state administrative decisions is authorized to bring a civil action in either a state court or a federal district court. Respondents-a child with only minimal residual hearing who had been furnished by school authorities with a special hearing aid for use in the classroom and who was to receive additional instruction from tutors, and the child's parents-filed suit in Federal District Court to review New York administrative proceedings that had upheld the school administrators' denial of the parents' request that the child also be provided a qualified sign-language interpreter in all of her academic classes. Entering judgment for respondents, the District Court found that although the child performed better than the average child in her class and was advancing easily from grade to grade, she was not performing as well academically as she would without her handicap. Because of this disparity between the child's achievement and her potential, the court held that she was not receiving a "free appropriate public education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." The Court of Appeals affirmed. Held:

1. The Act's requirement of a "free appropriate public education" is satisfied when the State provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate grade levels used in the State's regular education, and must comport with the child's IEP, as formulated in accordance with the Act's requirements. If the child is being educated in regular classrooms, as here, the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Pp. 187-204.

(a) This interpretation is supported by the definitions contained in the Act, as well as by other provisions imposing procedural requirements and setting forth statutory findings and priorities for States to follow in extending educational services to handicapped children. The Act's language contains no express substantive standard prescribing the level of education to be accorded handicapped children. Pp. 187-190.

(b) The Act's legislative history shows that Congress sought to make public education available to handicapped children, but did not intend to impose upon the States any greater substantive educational standard than is necessary to make such access to public education meaningful. The Act's intent was more to open the door of public education to handicapped children by means of specialized educational services than to guarantee any particular substantive level of education once inside. Pp. 191-197.

(c) While Congress sought to provide assistance to the States in carrying out their constitutional responsibilities to provide equal protection of the laws, it did not intend to achieve strict equality of opportunity or services for handicapped and nonhandicapped children, but rather sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. The Act does not require a State to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Pp. 198-200.

2. In suits brought under the Act's judicial-review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. Pp. 204-208.

(a) Although the judicial-review provisions do not limit courts to ensuring that States have complied with the Act's procedural requirements, the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. Pp. 204-207.

(b) The courts must be careful to avoid imposing their view of preferable educational methods upon the States. Once a court determines that the Act's requirements have been met, questions of methodology are for resolution by the States. Pp. 207-208.

3. Entrusting a child's education to state and local agencies does not leave the child without protection. As demonstrated by this case, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act. Pp.208-209

4. The Act does not require the provision of a sign-language interpreter here. Neither of the courts below found that there had been a failure to comply with the Act's procedures, and the findings of neither court will support a conclusion that the child's educational program failed to comply with the substantive requirements of the Act. Pp. 209-210.

632 F.2d 945 (2d Cir.), reversed and remanded.

Raymond G. Kuntz, Bedford Village, N. Y., for petitioners.

Michael A. Chatoff, Floral Park, N. Y., for respondent.

Elliott Schulder, Washington, D. C., for the United States as amicus curiae by special leave of Court.

Justice REHNQUIST delivered the opinion of the Court.

This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals.

* The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. § 1401 et seq. (1976 ed. and Supp.IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State's compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.' " H.R.Rep.No. 94-332, p. 2 (1975) (H.R.Rep.). The Act's evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case.

Congress first addressed the problem of educating the handicapped in 1966 when it amended the Elementary and Secondary Education Act of 1965 to establish a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children." Pub.L. 89-750, § 161, 80 Stat. 1204. That program was repealed in 1970 by the Education of the Handicapped Act, Pub.L. 91-230, 84 Stat. 175, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped. 1

Dissatisfied with the progress being made under these earlier enactments, and spurred by two District Court decisions holding that handicapped children should be given access to a public education, 2 Congress in 1974 greatly increased federal funding for education of the handicapped and for the first time required recipient States to adopt "a goal of providing full educational opportunities to all handicapped children." Pub.L. 93-380, 88 Stat. 579, 583 (1974 statute). The 1974 statute was recognized as an interim measure only, adopted "in order to give the Congress an additional year in which to study what if any additional Federal assistance [was] required to enable the States to meet the needs of handicapped children." H.R.Rep., at 4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975.

In order to qualify for federal financial assistance under the Act, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). That policy must be reflected in a state plan submitted to and approved by the Secretary of Education, 3 § 1413, which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. §§ 1412, 1413. States receiving money under the Act must provide education to the handicapped by priority, first "to handicapped children who are not receiving an education" and second "to handicapped children . . . with the most severe handicaps who are receiving an inadequate education," § 1412(3), and "to the maximum extent appropriate" must educate handicapped children "with children who are not handicapped." § 1412(5). 4 The Act broadly defines "handicapped children" to include "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities." § 1401(1). 5

The "free appropriate public education" required by the Act is tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). § 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing

"(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." § 1401(19).

Local or regional educational agencies must review, and where appropriate revise, each child's IEP at least annually. § 1414(a)(5). See also § 1413(a)(11).

In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child," and must be permitted to bring a complaint about "any matter relating to" such evaluation and education. §§ 1415(b)(1)(D) and (E). 6 Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. §§ 1415(b)(2) and (c). 7 Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2).

II

This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing and is an excellent lipreader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy's arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district's Committee on the Handicapped, which had received expert evidence from Amy's parents on the importance of a sign-language interpreter, received testimony from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf.

The District Court found that Amy "is a remarkably well-adjusted child" who interacts and communicates well with her classmates and has "developed an extraordinary rapport" with her teachers. 483 F.Supp. 528, 531 (1980). It also found that "she performs better than the average child in her class and is advancing easily from grade to grade," id., at 534, but "that she understands considerably less of what goes on in class than she could if she were not deaf" and thus "is not learning as much, or performing as well academically, as she would without her handicap," id., at 532. This disparity between Amy's achievement and her potential led the court to decide that she was not receiving a "free appropriate public education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." Id., at 534. According to the District Court, such a standard "requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or 'shortfall' be compared to the shortfall experienced by nonhandicapped children." Ibid. The District Court's definition arose from its assumption that the responsibility for "giv[ing] content to the requirement of an 'appropriate education' " had "been left entirely to the [federal] courts and the hearing officers." Id., at 533. 8

We granted certiorari to review the lower courts' interpretation of the Act. 454 U.S. 961, 102 S.Ct. 500, 70 L.Ed.2d 376 (1981). Such review requires us to consider two questions: What is meant by the Act's requirement of a "free appropriate public education"? And what is the role of state and federal courts in exercising the review granted by 20 U.S.C. § 1415? We consider these questions separately. 9

III

A.

This is the first case in which this Court has been called upon to interpret any provision of the Act. As noted previously, the District Court and the Court of Appeals concluded that "[t]he Act itself does not define 'appropriate education,' " 483 F.Supp., at 533, but leaves "to the courts and the hearing officers" the responsibility of "giv[ing] content to the requirement of an 'appropriate education.' " Ibid. See also 632 F.2d, at 947. Petitioners contend that the definition of the phrase "free appropriate public education" used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines "free appropriate public education," but contend that the statutory definition is not "functional" and thus "offers judges no guidance in their consideration of controversies involving 'the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.' " Brief for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents, states that "[a]lthough the Act includes definitions of a 'free appropriate public education' and other related terms, the statutory definitions do not adequately explain what is meant by 'appropriate.' " Brief for United States as Amicus Curiae 13.

We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define "free appropriate public education": "The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." § 1401(18) (emphasis added).

Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a "functional" one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit.

According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.

Other portions of the statute also shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were "excluded entirely from the public school system" and more than half were receiving an inappropriate education. 89 Stat. 774, note following § 1401. In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an "inadequate education." § 1412(3). When these express statutory findings and priorities are read together with the Act's extensive procedural requirements and its definition of "free appropriate public education," the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child.

B

"While much progress has been made in the last few years, we can take no solace in that progress until all handicapped children are, in fact, receiving an education. The most recent statistics provided by the Bureau of Education for the Handicapped estimate that . . . 1.75 million handicapped children do not receive any educational services, and 2.5 million handicapped children are not receiving an appropriate education." 121 Cong.Rec. 19486 (1975) (remarks of Sen. Williams).

Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to two federal-court judgments rendered in 1971 and 1972. As the Senate Report states, passage of the Act "followed a series of landmark court cases establishing in law the right to education for all handicapped children." S.Rep., at 6, U.S.Code Cong. & Admin.News 1975, p. 1430. 14 The first case, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F.Supp. 1257 (Ed Pa.1971) and 343 F.Supp. 279 (1972) ( PARC ), was a suit on behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to exclude them from public education and training. The case ended in a consent decree which enjoined the State from "deny[ing] to any mentally retarded child access to a free public program of education and training." 334 F.Supp., at 1258 (emphasis added).

PARC was followed by Mills v. Board of Education of District of Columbia, 348 F.Supp. 866 (D.C.1972), a case in which the plaintiff handicapped children had been excluded from the District of Columbia public schools. The court's judgment, quoted in S.Rep., at 6, provided that

"no [handicapped] child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative." 348 F.Supp., at 878 (emphasis added).

Mills and PARC both held that handicapped children must be given access to an adequate, publicly supported education. Neither case purports to require any particular substantive level of education. 15 Rather, like the language of the Act, the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children. See 348 F.Supp., at 878-883; 334 F.Supp., at 1258-1267. 16 The fact that both PARC and Mills are discussed at length in the legislative Reports 17 suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as having "incorporated the major principles of the right to education cases." S.Rep., at 8, U.S.Code Cong. & Admin.News 1975, p. 1432. Those principles in turn became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. H.R.Rep., at 5. 18

It is evident from the legislative history that the characterization of handicapped children as "served" referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as "unserved" referred to those who were receiving no specialized educational services. For example, a letter sent to the United States Commissioner of Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped "children served" in each State. The letter asked for statistics on the number of children "being served" in various types of "special education program[s]" and the number of children who were not "receiving educational services." Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the Act's principal sponsors in the Senate, noted that roughly one-half of the handicapped children in the United States "are receiving special educational services." Id., at 1. 20 By characterizing the 3.9 million handicapped children who were "served" as children who were "receiving an appropriate education," the Senate and House Reports unmistakably disclose Congress' perception of the type of education required by the Act: an "appropriate education" is provided when personalized educational services are provided. 21

(ii)

The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student's ability to assimilate information presented in the classroom. The requirement that States provide "equal" educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go. Thus to speak in terms of "equal" services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is "free appropriate public education," a phrase which is too complex to be captured by the word "equal" whether one is speaking of opportunities or services.

The legislative conception of the requirements of equal protection was undoubtedly informed by the two District Court decisions referred to above. But cases such as Mills and PARC held simply that handicapped children may not be excluded entirely from public education. In Mills, the District Court said:

"If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom." 348 F.Supp., at 876.

The PARC court used similar language, saying "[i]t is the commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity. . . ." 334 F.Supp., at 1260. The right of access to free public education enunciated by these cases is significantly different from any notion of absolute equality of opportunity regardless of capacity. To the extent that Congress might have looked further than these cases which are mentioned in the legislative history, at the time of enactment of the Act this Court had held at least twice that the Equal Protection Clause of the Fourteenth Amendment does not require States to expend equal financial resources on the education of each child. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McInnis v. Shapiro, 293 F.Supp. 327 (ND Ill.1968), aff'd sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969).

In explaining the need for federal legislation, the House Report noted that "no congressional legislation has required a precise guarantee for handicapped children, i.e. a basic floor of opportunity that would bring into compliance all school districts with the constitutional right of equal protection with respect to handicapped children." H.R.Rep., at 14. Assuming that the Act was designed to fill the need identified in the House Report-that is, to provide a "basic floor of opportunity" consistent with equal protection-neither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress' desire to provide specialized educational services, even in furtherance of "equality," cannot be read as imposing any particular substantive educational standard upon the States.

The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.

Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17) (emphasis added). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. 23

The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.

The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. 24 When that "mainstreaming" preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been "educated" at least to the grade level they have completed, and access to an "education" for handicapped children is precisely what Congress sought to provide in the Act. 25

C

IV

A.

As mentioned in Part I, the Act permits "[a]ny party aggrieved by the findings and decision" of the state administrative hearings "to bring a civil action" in "any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2). The complaint, and therefore the civil action, may concern "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." § 1415(b)(1)(E). In reviewing the complaint, the Act provides that a court "shall receive the record of the [state] administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 1415(e)(2).

Thus the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that § 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that merely because Congress was rather sketchy in establishing substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it intended that reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself. In short, the statutory authorization to grant "such relief as the court determines is appropriate" cannot be read without reference to the obligations, largely procedural in nature, which are imposed upon recipient States by Congress.

Therefore, a court's inquiry in suits brought under § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? 27 And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? 28 If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

B

In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. 29 The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of "acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials." § 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2). 30

We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 42, 93 S.Ct., at 1301. We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.

V

"The Committee recognizes that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. By changing the language [of the provision relating to individualized educational programs] to emphasize the process of parent and child involvement and to provide a written record of reasonable expectations, the Committee intends to clarify that such individualized planning conferences are a way to provide parent involvement and protection to assure that appropriate services are provided to a handicapped child." S.Rep., at 11-12, U.S.Code Cong. & Admin.News 1975, p. 1435.

See also S.Conf.Rep.No.94-445, p. 30 (1975); 34 CFR § 300.345 (1981). As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act. 31

VI

Justice BLACKMUN, concurring in the judgment.

Although I reach the same result as the Court does today, I read the legislative history and goals of the Education of the Handicapped Act differently. Congress unambiguously stated that it intended to "take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity." S.Rep.No.94-168, p. 9 (1975), U.S.Code Cong. & Admin.News 1975, p. 1433 (emphasis added). See also 20 U.S.C. § 1412(2)(A)(i) (requiring States to establish plans with the "goal of providing full educational opportunity to all handicapped children").

As I have observed before, "[i]t seems plain to me that Congress, in enacting [this statute], intended to do more than merely set out politically self-serving but essentially meaningless language about what the [handicapped] deserve at the hands of state . . . authorities." Pennhurst State School v. Halderman, 451 U.S. 1, 32, 101 S.Ct. 1531, 1547, 67 L.Ed.2d 694 (1981) (opinion concurring in part and concurring in the judgment). The clarity of the legislative intent convinces me that the relevant question here is not, as the Court says, whether Amy Rowley's individualized education program was "reasonably calculated to enable [her] to receive educational benefits," ante, at 207, measured in part by whether or not she "achieve[s] passing marks and advance[s] from grade to grade," ante, at 204. Rather, the question is whether Amy's program, viewed as a whole, offered her an opportunity to understand and participate in the classroom that was substantially equal to that given her nonhandicapped classmates. This is a standard predicated on equal educational opportunity and equal access to the educational process, rather than upon Amy's achievement of any particular educational outcome.

As the Court demonstrates, ante, at 184-185, petitioner Board has provided Amy Rowley considerably more than "a teacher with a loud voice." See post, at 215 (dissenting opinion). By concentrating on whether Amy was "learning as much, or performing as well academically, as she would without her handicap," 483 F.Supp. 528, 532 (S.D.N.Y.1980), the District Court and the Court of Appeals paid too little attention to whether, on the entire record, respondent's individualized education program offered her an educational opportunity substantially equal to that provided her nonhandicapped classmates. Because I believe that standard has been satisfied here, I agree that the judgment of the Court of Appeals should be reversed.

Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

In order to reach its result in this case, the majority opinion contradicts itself, the language of the statute, and the legislative history. Both the majority's standard for a "free appropriate education" and its standard for judicial review disregard congressional intent.

* The majority first turns its attention to the meaning of a "free appropriate public education." The Act provides:

The majority reads this statutory language as establishing a congressional intent limited to bringing "previously excluded handicapped children into the public education systems of the States and [requiring] the States to adopt procedures which would result in individualized consideration of and instruction for each child." Ante, at 189. In its attempt to constrict the definition of "appropriate" and the thrust of the Act, the majority opinion states: "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts-that States maximize the potential of handicapped children 'commensurate with the opportunity provided to other children.' " Ante, at 189-190, quoting 483 F.Supp. 528, 534 (SDNY 1980).

I agree that the language of the Act does not contain a substantive standard beyond requiring that the education offered must be "appropriate." However, if there are limits not evident from the face of the statute on what may be considered an "appropriate education," they must be found in the purpose of the statute or its legislative history. The Act itself announces it will provide a " full educational opportunity to all handicapped children." 20 U.S.C. § 1412(2)(A) (emphasis added). This goal is repeated throughout the legislative history, in statements too frequent to be " 'passing references and isolated phrases.' " 1 Ante, at 204, n. 26, quoting Department of State v. Washington Post Co., 456 U.S. 596, 600, 102 S.Ct. 1957, 1960, 72 L.Ed.2d 358 (1982). These statements elucidate the meaning of "appropriate." According to the Senate Report, for example, the Act does "guarantee that handicapped children are provided equal educational opportunity." S.Rep.No.94-168, p. 9 (1975), U.S.Code Cong. & Admin.News 1975, p. 1433 (emphasis added). This promise appears throughout the legislative history. See 121 Cong.Rec. 19482-19483 (1975) (remarks of Sen. Randolph); id., at 19504 (Sen. Humphrey); id., at 19505 (Sen Beall); id., at 23704 (Rep. Brademas); id., at 25538 (Rep. Cornell); id., at 25540 (Rep. Grassley); id., at 37025 (Rep. Perkins); id., at 37030 (Rep. Mink); id., at 37412 (Sen. Taft); id., at 37413 (Sen. Williams); id., at 37418-37419 (Sen. Cranston); id., at 37419-37420 (Sen. Beall). Indeed, at times the purpose of the Act was described as tailoring each handicapped child's educational plan to enable the child "to achieve his or her maximum potential." H.R.Rep.No.94-332, pp. 13, 19 (1975); see 121 Cong.Rec. 23709 (1975). Senator Stafford, one of the sponsors of the Act, declared: "We can all agree that education [given a handicapped child] should be equivalent, at least, to the one those children who are not handicapped receive." Id., at 19483. The legislative history thus directly supports the conclusion that the Act intends to give handicapped children an educational opportunity commensurate with that given other children.

The majority opinion announces a different substantive standard, that "Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Ante, at 192. While "meaningful" is no more enlightening than "appropriate," the Court purports to clarify itself. Because Amy was provided with some specialized instruction from which she obtained some benefit and because she passed from grade to grade, she was receiving a meaningful and therefore appropriate education. 2

This falls far short of what the Act intended. The Act details as specifically as possible the kind of specialized education each handicapped child must receive. It would apparently satisfy the Court's standard of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child," ante, at 201, for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service. The Act requires more. It defines "special education" to mean "specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child. . . ." § 1401(16) (emphasis added). 3 Providing a teacher with a loud voice would not meet Amy's needs and would not satisfy the Act. The basic floor of opportunity is instead, as the courts below recognized, intended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible. Amy Rowley, without a sign-language interpreter, comprehends less than half of what is said in the classroom-less than half of what normal children comprehend. This is hardly an equal opportunity to learn, even if Amy makes passing grades.

II

The majority assigns major significance to the review provision's being found in a section entitled "Procedural safeguards." But where else would a provision for judicial review belong? The majority does acknowledge that the current language, specifying that a court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate," § 1415(e)(2), was substituted at Conference for language that would have restricted the role of the reviewing court much more sharply. It is clear enough to me that Congress decided to reduce substantially judicial deference to state administrative decisions.

The legislative history shows that judicial review is not limited to procedural matters and that the state educational agencies are given first, but not final, responsibility for the content of a handicapped child's education. The Conference Committee directs courts to make an "independent decision." S.Conf.Rep.No.94-455, p. 50 (1975). The deliberate change in the review provision is an unusually clear indication that Congress intended courts to undertake substantive review instead of relying on the conclusions of the state agency.

On the floor of the Senate, Senator Williams, the chief sponsor of the bill, Committee Chairman, and floor manager responsible for the legislation in the Senate, emphasized the breadth of the review provisions at both the administrative and judicial levels:

"Any parent or guardian may present a complaint concerning any matter regarding the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child. In this regard, Mr. President, I would like to stress that the language referring to 'free appropriate education' has been adopted to make clear that a complaint may involve matters such as questions respecting a child's individualized education program, questions of whether special education and related services are being provided without charge to the parents or guardians, questions relating to whether the services provided a child meet the standards of the State education agency, or any other question within the scope of the definition of 'free appropriate public education.' In addition, it should be clear that a parent or guardian may present a complaint alleging that a State or local education agency has refused to provide services to which a child may be entitled or alleging that the State or local educational agency has erroneously classified a child as a handicapped child when, in fact, that child is not a handicapped child." 121 Cong.Rec. 37415 (1975) (emphasis added).

There is no doubt that the state agency itself must make substantive decisions. The legislative history reveals that the courts are to consider, de novo, the same issues. Senator Williams explicitly stated that the civil action permitted under the Act encompasses all matters related to the original complaint. Id., at 37416.

Thus, the Court's limitations on judicial review have no support in either the language of the Act or the legislative history. Congress did not envision that inquiry would end if a showing is made that the child is receiving passing marks and is advancing from grade to grade. Instead, it intended to permit a full and searching inquiry into any aspect of a handicapped child's education. The Court's standard, for example, would not permit a challenge to part of the IEP; the legislative history demonstrates beyond doubt that Congress intended such challenges to be possible, even if the plan as developed is reasonably calculated to give the child some benefits.

Parents can challenge the IEP for failing to supply the special education and related services needed by the individual handicapped child. That is what the Rowleys did. As the Government observes, "courts called upon to review the content of an IEP, in accordance with 20 U.S.C. [§] 1415(e) inevitably are required to make a judgment, on the basis of the evidence presented, concerning whether the educational methods proposed by the local school district are 'appropriate' for the handicapped child involved." Brief for United States as Amicus Curiae 13. The courts below, as they were required by the Act, did precisely that.

Under the judicial review provisions of the Act, neither the District Court nor the Court of Appeals was bound by the State's construction of what an "appropriate" education means in general or by what the state authorities considered to be an appropriate education for Amy Rowley. Because the standard of the courts below seems to me to reflect the congressional purpose and because their factual findings are not clearly erroneous, I respectfully dissent.

# data[].attributes.attachment_link.title
BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT BD. OF ED., WESTCHESTER COUNTY, et al., Petitioners v. Amy ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley etc.

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458 U.S. 176 102 S.Ct. 3034 73 L.Ed.2d 690 BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT BD. OF ED., WESTCHESTER COUNTY, et al., Petitionersv.Amy ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley etc. No. 80-1002.

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Slide #7 Statutory Law: Individuals with Disabilities Education Act (20 USC § 1400)

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Slide #7 Statutory Law: Individuals with Disabilities Education Act (20 USC § 1400)

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Individuals with Disabilities Education Act (IDEA) was signed into law by former President, George W. Bush.

The primary purpose is to provide free appropriate public education (FAPE) to children with disabilities.

At no cost to families, students suspected of disabilities are evaluated. If a student is found to have a qualifying disability, the school must provide them with special education and related services to meet their needs for success.

IDEA includes 6 pillars: FAPE, least restrictive environment (LRE), individualized education plan (IEP), evaluation, parent/student participation, and all procedural safeguards for participants.

For school counselors, they must encourage and support the academic, career, and social/emotional development of all students. They are committed to helping all students realize and meet their potential. This includes serving in any supervisory capacity related to the implementation of the IDEA.

Individuals with Disabilities Act, 20 USC § 1400 (1997)

https://uscode.house.gov

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Slide #8 Judicial Law: Mills v. Board of Education (1972) 

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Slide #8 Judicial Law: Mills v. Board of Education (1972) 

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Class action lawsuit same year as the famous PARC v. Commonwealth of Pennsylvania (1972) case on behalf of the seven children were denied the right to FAPE.

They were denied because of their mental, behavioral, physical or emotional disabilities.

The Judge ruled that the Board of Education would pay for FAPE or alternate education for all students irrespective of their needs or the cost.

Denial of FAPE to a disabled child must be given due process proceedings first.

Also, without a proper hearing, students with disabilities could not be suspended for more than two days at a time (Mills v. Board., 1972).

Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 91972)

https://law.justia.com/cases/federal/district-courts/FSupp/348/866/2010674/

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U.S. District Court for the District of Columbia - 348 F. Supp. 866 (D.D.C. 1972)
August 1, 1972

Peter MILLS et al., Plaintiffs,
v.
BOARD OF EDUCATION OF the DISTRICT OF COLUMBIA et al., Defendants.

Civ. A. No. 1939-71.

United States District Court, District of Columbia.

August 1, 1972.

Julian Tepper and Stanley Herr, NLADA, National Law Office, Patricia M. Wald, Washington, D. C., and Paul R. Dimond, Cambridge, Mass., for plaintiffs.

C. Francis Murphy, Corp. Counsel, D. C., John A. Earnest, and Stephan Shane Stark, Asst. Corp. Counsels, Washington, D. C., for defendants.

Ralph Wolff and G. Dan Bowling, Washington, D. C., for defendant Charles I. Cassell.

John M. Newsome, Washington, D. C., Sp. Counsel for defendant John L. Johnson.

MEMORANDUM OPINION, JUDGMENT AND DECREE

WADDY, District Judge.

This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative placement at public expense. They also seek additional and ancillary relief to effectuate the primary relief. They allege that although they can profit from an education either in regular classrooms with supportive services or in special classes adopted to their needs, they have been labelled as behavioral problems, mentally retarded, emotionally disturbed or hyperactive, and denied admission to the public schools or excluded therefrom after admission, with no provision for alternative educational placement or periodic review. The action was certified as a class action under Rule 23(b) (1) and (2) of Federal Rules of Civil Procedure by order of the Court dated December 17, 1971.

The defendants are the Board of Education of the District of Columbia and its members, the Superintendent of Schools for the District of Columbia and subordinate school officials, the Commissioner of the District of Columbia and certain subordinate officials and the District of Columbia.

The genesis of this case is found (1) in the failure of the District of Columbia to provide publicly supported education and training to plaintiffs and other "exceptional" children, members of their class, and (2) the excluding, suspending, expelling, reassigning and transferring of "exceptional" children from regular public school classes without affording them due process of law.

The problem of providing special education for "exceptional" children (mentally retarded, emotionally disturbed, physically handicapped, hyperactive and other children with behavioral problems) is one of major proportions in the District of Columbia. The precise number of such children cannot be stated because the District has continuously failed to comply with Section 31-208 of the District of Columbia Code which requires a census of all children aged 3 to 18 in the District to be taken. Plaintiffs estimate that there are ". . . 22,000 retarded, emotionally disturbed, blind, deaf, and speech or learning disabled children, and perhaps as many as 18,000 of these children are not being furnished with programs of specialized education." According to data prepared by the Board of Education, Division of Planning, Research and Evaluation, the District of Columbia provides publicly supported special education programs of various descriptions to at least 3880 school age children.[1] However, in a 1971 report to the Department of Health, Education and Welfare, the District of Columbia Public Schools admitted that an estimated 12,340 handicapped children were not to be served in the 1971-72 school year.[2]

Each of the minor plaintiffs in this case qualifies as an "exceptional" child.

Plaintiffs allege in their complaint and defendants admit as follows:

"PETER MILLS is twelve years old, black, and a committed dependent ward of the District of Columbia resident at Junior Village. He was excluded from the Brent Elementary School on March 23, 1971, at which time he was in the fourth grade. Peter allegedly was a `behavior problem' and was recommended and approved for exclusion by the principal. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Furthermore, Defendants have failed to provide for his reenrollment in the District of Columbia Public Schools or enrollment in private school. On information and belief, numerous other dependent children of school attendance age at Junior Village are denied a publicly-supported education. Peter remains excluded from any publicly-supported education.

"DUANE BLACKSHEARE is thirteen years old, black, resident at Saint Elizabeth's Hospital, Washington, D. C., and a dependent committed child. He was excluded from the Giddings Elementary School in October, 1967, at which time he was in the third grade. Duane allegedly was a "behavior problem." Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite repeated efforts by his mother, Duane remained largely excluded from all publicly-supported education until February, 1971. Education experts at the Child Study Center examined Duane and found him to be capable of returning to regular class if supportive services were provided. Following several articles in the Washington Post and Washington Star, Duane was placed in a regular seventh grade classroom on a two-hour a day basis without any catch-up assistance and without an evaluation or diagnostic interview of any kind. Duane has remained on a waiting list for a tuition grant and is now excluded from all publicly-supported education.

"GEORGE LIDDELL, JR., is eight years old, black, resident with his mother, Daisy Liddell, at 601 Morton Street, N. W., Washington, D. C., and an AFDC recipient. George has never attended public school because of the denial of his application to the Maury Elementary School on the ground that he required a special class. George allegedly was retarded. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. George remains excluded from all publicly-supported education, despite a medical opinion that he is capable of profiting from schooling, and despite his mother's efforts to secure a tuition grant from Defendants.

"STEVEN GASTON is eight years old, black, resident with his mother, Ina Gaston, at 714 9th Street, N. E., Washington, D. C. and unable to afford private instruction. He has been excluded from the Taylor Elementary School since September, 1969, at which time he was in the first grade. Steven allegedly was slightly brain-damaged and hyperactive, and was excluded because he wandered around the classroom. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Steven was accepted in the Contemporary School, a private *870 school, provided that tuition was paid in full in advance. Despite the efforts of his parents, Steven has remained on a waiting list for the requisite tuition grant from Defendant school system and excluded from all publicly-supported education.

"MICHAEL WILLIAMS is sixteen years old, black, resident at Saint Elizabeth's Hospital, Washington, D. C., and unable to afford private instruction. Michael is epileptic and allegedly slightly retarded. He has been excluded from the Sharpe Health School since October, 1969, at which time he was temporarily hospitalized. Thereafter Michael was excluded from school because of health problems and school absences. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite his mother's efforts, and his attending physician's medical opinion that he could attend school, Michael has remained on a waiting list for a tuition grant and excluded from all publicly-supported education.

"JANICE KING is thirteen years old, black, resident with her father, Andrew King, at 233 Anacostia Avenue, N. E., Washington, D. C., and unable to afford private instruction. She has been denied access to public schools since reaching compulsory school attendance age, as a result of the rejection of her application, based on the lack of an appropriate educational program. Janice is brain-damaged and retarded, with right hemiplegia, resulting from a childhood illness. Defendants have not provided her with a full hearing or with a timely and adequate review of her status. Despite repeated efforts by her parents, Janice has been excluded from all publicly-supported education.

"JEROME JAMES is twelve years old, black, resident with his mother, Mary James, at 2512 Ontario Avenue, N. W., Washington, D. C., and an AFDC recipient. Jerome is a retarded child and has been totally excluded from public school. Defendants have not given him a full hearing or a timely and adequate review of his status. Despite his mother's efforts to secure either public school placement or a tuition grant, Jerome has remained on a waiting list for a tuition grant and excluded from all publicly supported education."[3]

Although all of the named minor plaintiffs are identified as Negroes the class they represent is not limited by their race. They sue on behalf of and represent all other District of Columbia residents of school age who are eligible for a free public education and who have been, or may be, excluded from such education or otherwise deprived by defendants of access to publicly supported education.

Minor plaintiffs are poor and without financial means to obtain private instruction. There has been no determination that they may not benefit from specialized instruction adapted to their needs. Prior to the beginning of the 1971-72 school year minor plaintiffs, through their representatives, sought to obtain publicly supported education and certain of them were assured by the school authorities that they would be placed in programs of publicly supported education and certain others would be recommended for special tuition grants at private schools. However, none of the plaintiff children were placed for the 1971 Fall term and they continued to be entirely excluded from all publicly supported education. After thus trying unsuccessfully to obtain relief from the Board of Education the plaintiffs filed this action on September 24, 1971.

THERE IS NO GENUINE ISSUE OF MATERIAL FACT

Congress has decreed a system of publicly supported education for the children of the District of Columbia.[4] The Board of Education has the responsibility of administering that system in accordance with law and of providing such publicly supported education to all of the children of the District, including these "exceptional" children.[5]

Defendants have admitted in these proceedings that they are under an affirmative duty to provide plaintiffs and their class with publicly supported education suited to each child's needs, including special education and tuition grants, and also, a constitutionally adequate prior hearing and periodic review. They have also admitted that they failed to supply plaintiffs with such publicly supported education and have failed to afford them adequate prior hearing and periodic review. On December 20, 1971 the plaintiffs and defendants agreed to and the Court signed an interim stipulation and order which provided in part as follows:

"Upon consent and stipulation of the parties, it is hereby ORDERED that:

"1. Defendants shall provide plaintiffs Peter Mills, Duane Blacksheare, Steven Gaston and Michael Williams with a publicly-supported education suited to their (plaintiffs') needs by January 3, 1972.

"2. Defendants shall provide counsel for plaintiffs, by January 3, 1972, a list showing, for every child of school age then known not to be attending a publicly-supported educational program because of suspension, expulsion, exclusion, or any other denial of placement, the name of the child's parent or guardian, the child's name, age, address and telephone number, the date of his suspension, expulsion, exclusion or denial of placement and, without attributing a particular characteristic to any specific child, a breakdown of such list, showing the alleged causal characteristics for such nonattendance and the number of children possessing such alleged characteristics.

"3. By January 3, 1972, defendants shall initiate efforts to identify remaining members of the class not presently known to them, and also by that date, shall notify counsel for plaintiffs of the nature and extent of such efforts. Such efforts shall include, at a minimum, a system-wide survey of elementary and secondary schools, use of the mass written and electronic media, and a survey of District of Columbia agencies who may have knowledge pertaining to such remaining members of the class. By February 1, 1972, defendants shall provide counsel for plaintiffs with the names, addresses and telephone numbers of such remaining members of the class then known to them.

"4. Pending further action by the Court herein, the parties shall consider the selection and compensation of a master for determination of special questions arising out of this action with regard to the placement of children in a publicly-supported educational program suited to their needs."

On February 9, 1972, the Board of Education passed a Resolution which included the following:

"Special Education

"7. All vacant authorized special education positions, whether in the regular, Impact Aid, or other Federal budgets, shall be filled as rapidly as possible within the capability of the Special Education Department. Regardless of the capability of the Department to fill vacant positions, all funds presently appropriated or allotted for special education, whether in the regular, Impact Aid, or other Federal budgets, shall be spent solely for special education.

"8. The Board requests the Corporation Counsel to ask the United *872 States District Court for an extension of time within which to file a response to plaintiffs' motion for summary judgment in Mills v. Board of Education on the grounds that (a) the Board intends to enter into a consent judgment declaring the rights of children in the District of Columbia to a public education; and (b) the Board needs time (not in excess of 30 days) to obtain from the Associate Superintendent for Special Education a precise projection on a monthly basis the cost of fulfilling those budgets.

"9. The Board directs the Rules Committee to devise as soon as possible for the purpose of Mills v. Board of Education rules defining and providing for due process and fair hearings; and requests the Corporation Counsel to lend such assistance to the Board as may be necessary in devising such rules in a form which will meet the requirements of Mills v. Board of Education.

"10. It is the intention of the Board to submit for approval by the Court in Mills v. Board of Education a Memorandum of Understanding setting forth a comprehensive plan for the education, treatment and care of physically or mentally impaired children in the age range from three to twenty-one years. It is hoped that the various other District of Columbia agencies concerned will join with the Board in the submission of this plan.

"It is the further intention of the Board to establish procedures to implement the finding that all children can benefit from education and, have a right to it, by providing for comprehensive health and psychological appraisal of children and the provision for each child of any special education which he may need. The Board will further require that no change in the kind of education provided for a child will be made against his wishes or the wishes of his parent or guardian unless he has been accorded a full hearing on the matter consistent with due process."

Defendants failed to comply with that consent order and there is now pending before the Court a motion of the plaintiffs to require defendants to show cause why they should not be held in contempt for such failure to comply.

On January 21, 1972 the plaintiffs filed a motion for summary judgment and a proposed order and decree for implementation of the proposed judgment and requested a hearing. On March 1, 1972 the defendants responded as follows:

"1. The District of Columbia and its officers who are named defendants to this complaint consent to the entrance of a judgment declaring the rights of the plaintiff class to the effect prayed for in the complaint, as specified below, such rights to be prospectively effective as of March 1, 1972:

That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative.

It is submitted that the entrance of a declaratory judgment to this effect renders plaintiffs' motion for summary judgment moot.

"2. For response to plaintiffs' motion for a hearing, defendants respectfully *873 request that this Court hold a hearing as soon as practicable at which defendants will present a plan to implement the above declaratory judgment and at which the Court may decide whether further relief is appropriate."

The Court set the date of March 24, 1972, for the hearing that both parties had requested and specifically ordered the defendants to submit a copy of their proposed implementation plan no later than March 20, 1972.

On March 24, 1972, the date of the hearing, the defendants not only had failed to submit their implementation plan as ordered but were also continuing in their violation of the provisions of the Court's order of December 20, 1971. At the close of the hearing on March 24, 1972, the Court found that there existed no genuine issue of a material fact; orally granted plaintiffs' motion for summary judgment, and directed defendants to submit to the Court any proposed plan they might have on or before March 31, 1972.[6] The defendants, other than Cassell, failed to file any proposal within the time directed. However, on April 7, 1972, there was sent to the Clerk of the Court on behalf of the Board of Education and its employees who are defendants in this case the following documents:

1. A proposed form of Order to be entered by the Court.

2. An abstract of a document titled "A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children".

3. A document titled "A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children".[7]

4. Certain Attachments and Appendices to this Plan.

The letter accompanying the documents contained the following paragraph:

"These documents express the position of the Board of Education and its employees as to what should be done to implement the judgment of the Honorable Joseph C. Waddy, the District Judge presiding over this civil action. The contents of these documents have not been endorsed by the other defendants in this case."

None of the other defendants have filed a proposed order or plan. Nor has any of them adopted the proposal submitted by the Board of Education. Throughout these proceedings it has been obvious to the Court that the defendants have no common program or plan for the alleviation of the problems posed by this litigation and that this lack of communication, cooperation and plan is typical and contributes to the problem.

PLAINTIFFS ARE ENTITLED TO RELIEF

Plaintiffs' entitlement to relief in this case is clear. The applicable statutes and regulations and the Constitution of the United States require it.

Section 31-201 of the District of Columbia Code requires that:

"Every parent, guardian, or other person residing [permanently or temporarily] in the District of Columbia who has custody or control of a child between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately during the period of each year in which the public schools of the District of Columbia are in session . . ."

Under Section 31-203, a child may be "excused" from attendance only when

*874 ". . . . upon examination ordered by . . . [the Board of Education of the District of Columbia], [the child] is found to be unable mentally or physically to profit from attendance at school: Provided, however, That if such examination shows that such child may benefit from specialized instruction adapted to his needs, he shall attend upon such instruction."

Failure of a parent to comply with Section 31-201 constitutes a criminal offense. D.C.Code 31-207. The Court need not belabor the fact that requiring parents to see that their children attend school under pain of criminal penalties presupposes that an educational opportunity will be made available to the children. The Board of Education is required to make such opportunity available. It has adopted rules and regulations consonant with the statutory direction. Chapter XIII of the Board Rules contains the following:

1.1All children of the ages hereinafter prescribed who are bona fide residents of the District of Columbia are entitled to admission and free tuition in the Public Schools of the District of Columbia, subject to the rules, regulations, and orders of the Board of Education and the applicable statutes.

14.1Every parent, guardian, or other person residing permanently or temporarily in the District of Columbia who has custody or control of a child residing in the District of Columbia between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately during the period of each year in which the Public Schools of the District of Columbia are in session, provided that instruction given in such private or parochial school, or privately, is deemed reasonably equivalent by the Board of Education to the instruction given in the Public Schools.

14.3The Board of Education of the District of Columbia may, upon written recommendation of the Superintendent of Schools, issue a certificate excusing from attendance at school a child who, upon examination by the Department of Pupil Appraisal, Study and Attendance or by the Department of Public Health of the District of Columbia, is found to be unable mentally or physically to profit from attendance at school: Provided, however, that if such examination shows that such child may benefit from specialized instruction adapted to his needs, he shall be required to attend such classes.

Thus the Board of Education has an obligation to provide whatever specialized instruction that will benefit the child. By failing to provide plaintiffs and their class the publicly supported specialized education to which they are entitled, the Board of Education violates the above statutes and its own regulations.

The ConstitutionEqual Protection and Due Process

The Supreme Court in Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954) stated:

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. (emphasis supplied)

Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884, decided the same day as Brown, applied the Brown rationale to the District of Columbia public schools by finding that:

"Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause."

In Hobson v. Hansen, 269 F. Supp. 401 (D.C.D.C.1967) Circuit Judge J. Skelly Wright considered the pronouncements of the Supreme Court in the intervening years and stated that ". . . the Court has found the due process clause of the Fourteenth Amendment elastic enough to embrace not only the First and Fourth Amendments, but the self-incrimination clause of the Fifth, the speedy trial, confrontation and assistance of counsel clauses of the Sixth, and the cruel and unusual clause of the Eighth." ( 269 F. Supp. 401 at 493, citations omitted). Judge Wright concluded "(F)rom these considerations the court draws the conclusion that the doctrine of equal educational opportunitythe equal protection clause in its application to public school educationis in its full sweep a component of due process binding on the District under the due process clause of the Fifth Amendment."

In Hobson v. Hansen, supra, Judge Wright found that denying poor public school children educational opportunities equal to that available to more affluent public school children was violative of the Due Process Clause of the Fifth Amendment. A fortiori, the defendants' conduct here, denying plaintiffs and their class not just an equal publicly supported education but all publicly supported education while providing such education to other children, is violative of the Due Process Clause.

Not only are plaintiffs and their class denied the publicly supported education to which they are entitled many are suspended or expelled from regular schooling or specialized instruction or reassigned without any prior hearing and are given no periodic review thereafter. Due process of law requires a hearing prior to exclusion, termination of classification into a special program. Vought v. Van Buren Public Schools, 306 F. Supp. 1388 (E.D.Mich.1969); Williams v. Dade County School Board, 441 F.2d 299 (5th Cir. 1971); Cf. Soglin v. Kauffman, 295 F. Supp. 978 (W.D. Wis.1968); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), cert. den., 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

The Answer of the defendants to the Complaint contains the following:

"These defendants say that it is impossible to afford plaintiffs the relief they request unless:

(a) The Congress of the United States appropriates millions of dollars to improve special education services in the District of Columbia; or

(b) These defendants divert millions of dollars from funds already specifically appropriated for other educational services in order to improve special educational services. These defendants suggest that to do so would violate an Act of Congress and would be inequitable to children outside the alleged plaintiff class."

This Court is not persuaded by that contention.

The defendants are required by the Constitution of the United States, the District of Columbia Code, and their own regulations to provide a publicly-supported education for these "exceptional" children. Their failure to fulfill this clear duty to include and retain these children in the public school system, or otherwise provide them with publicly-supported education, and their failure to afford them due process hearing and periodical review, cannot be excused by the claim that there are insufficient funds. In Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1969) the Supreme Court, in a case that involved the right of a welfare recipient to a hearing before termination of his benefits, held that Constitutional rights must be afforded citizens despite the greater expense involved. The Court stated at page 266, 90 S.Ct. at page 1019, that "the State's interest that his [welfare recipient] payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens." Similarly the District of Columbia's interest in educating the excluded children clearly must outweigh its interest in preserving its financial resources. If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the "exceptional" or handicapped child than on the normal child.

IMPLEMENTATION OF JUDGMENT

This Court has pointed out that Section 31-201 of the District of Columbia Code requires that every person residing in the District of Columbia ". . . who has custody or control of a child between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately . . . ."[8] It is the responsibility of the Board of Education to provide the opportunities and facilities for such instruction.

The Court has determined that the Board likewise has the responsibility for implementation of the judgment and decree of this Court in this case. Section 31-103 of the District of Columbia Code clearly places this responsibility upon the Board. It provides:

"The Board shall determine all questions of general policy relating to the schools, shall appoint the executive officers hereinafter provided for, define their duties, and direct expenditures."

The lack of communication and cooperation between the Board of Education and the other defendants in this action shall not be permitted to deprive plaintiffs and their class of publicly supported education. Section 31-104b of the District of Columbia Code dictates that the Board of Education and the District of Columbia Government must coordinate educational and municipal functions:

"(a) The Board of Education and the Commissioner of the District of Columbia shall jointly develop procedures to assure the maximum coordination of educational and other municipal programs and services in achieving the most effective educational system and utilization of educational facilities and services to serve broad community needs. Such procedures shall cover such matters as

"(1) design and construction of educational facilities to accommodate civic and community activities such as recreation, adult and vocational education *877 and training, and other community purposes;

"(2) full utilization of educational facilities during nonschool hours for community purposes;

"(3) utilization of municipal services such as police, sanitation, recreational, maintenance services to enhance the effectiveness and stature of the school in the community;

"(4) arrangements for cost-sharing and reimbursements on school and community programs involving utilization of educational facilities and services; and

"(5) other matters of mutual interest and concern.

"(b) The Board of Education may invite the Commissioner of the District of Columbia or his designee to attend and participate in meetings of the Board on matters pertaining to coordination of educational and other municipal programs and services and on such other matters as may be of mutual interest." (Emphasis supplied).

If the District of Columbia Government and the Board of Education cannot jointly develop the procedures and programs necessary to implement this Court's order then it shall be the responsibility of the Board of Education to present the irresolvable issue to the Court for resolution in a timely manner so that plaintiffs and their class may be afforded their constitutional and statutory rights. If any dispute should arise between the defendants which requires for its resolution a degree of expertise in the field of education not possessed by the Court, the Court will appoint a special master pursuant to the provisions of Rule 53 of the Federal Rules of Civil Procedure to assist the Court in resolving the issue.

Inasmuch as the Board of Education has presented for adoption by the Court a proposed "Order and Decree" embodying its present plans for the identification of "exceptional" children and providing for their publicly supported education, including a time table, and further requiring the Board to formulate and file with the Court a more comprehensive plan,[9] the Court will not now appoint a special master as was requested by plaintiffs. Despite the defendants' failure to abide by the provisions of the Court's previous orders in this case and despite the defendants' continuing failure to provide an education for these children, the Court is reluctant to arrogate to itself the responsibility of administering this or any other aspect of the Public School System of the District of Columbia through the vehicle of a special master. Nevertheless, inaction or delay on the part of the defendants, or failure by the defendants to implement the judgment and decree herein within the time specified therein will result in the immediate appointment of a special master to oversee and direct such implementation under the direction of this Court. The Court will include as a part of its judgment the proposed "Order and Decree" submitted by the Board of Education, as modified in minor part by the Court, and will retain jurisdiction of the cause to assure prompt implementation of the judgment. Plaintiffs' motion to require certain defendants to show cause why they should not be adjudged in contempt will be held in abeyance for 45 days.

Plaintiffs having filed their verified complaint seeking an injunction and declaration of rights as set forth more fully in the verified complaint and the prayer for relief contained therein; and having moved this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and this Court having reviewed the record of this cause including plaintiffs' Motion, pleadings, affidavits, and evidence and arguments *878 in support thereof, and defendants' affidavit, pleadings, and evidence and arguments in support thereof, and the proceedings of pre-trial conferences on December 17, 1971, and January 14, 1972, it is hereby ordered, adjudged and decreed that summary judgment in favor of plaintiffs and against defendants be, and hereby is, granted, and judgment is entered in this action as follows:

1. That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative.

2. The defendants, their officers, agents, servants, employees, and attorneys and all those in active concert or participation with them are hereby enjoined from maintaining, enforcing or otherwise continuing in effect any and all rules, policies and practices which exclude plaintiffs and the members of the class they represent from a regular public school assignment without providing them at public expense (a) adequate and immediate alternative education or tuition grants, consistent with their needs, and (b) a constitutionally adequate prior hearing and periodic review of their status, progress and the adequacy of any educational alternatives; and it is further ORDERED that:

3. The District of Columbia shall provide to each child of school age a free and suitable publicly-supported education regardless of the degree of the child's mental, physical or emotional disability or impairment. Furthermore, defendants shall not exclude any child resident in the District of Columbia from such publicly-supported education on the basis of a claim of insufficient resources.

4. Defendants shall not suspend a child from the public schools for disciplinary reasons for any period in excess of two days without affording him a hearing pursuant to the provisions of Paragraph 13.f., below, and without providing for his education during the period of any such suspension.

5. Defendants shall provide each identified member of plaintiff class with a publicly-supported education suited to his needs within thirty (30) days of the entry of this order. With regard to children who later come to the attention of any defendant, within twenty (20) days after he becomes known, the evaluation (case study approach) called for in paragraph 9 below shall be completed and within 30 days after completion of the evaluation, placement shall be made so as to provide the child with a publicly supported education suited to his needs.

In either case, if the education to be provided is not of a kind generally available during the summer vacation, the thirty-day limit may be extended for children evaluated during summer months to allow their educational programs to begin at the opening of school in September.

6. Defendants shall cause announcements and notices to be placed in the Washington Post, Washington Star-Daily News, and the Afro-American, in all issues published for a three week period commencing within five (5) days of the entry of this order, and thereafter at quarterly intervals, and shall cause spot announcements to be made on television and radio stations for twenty (20) consecutive days, commencing within five (5) days of the entry of this order, and thereafter at quarterly intervals, advising residents of the District of Columbia that all children, regardless of any handicap or other disability, have a right to a publicly-supported education suited to their needs, and informing the parents or guardians of such children of the procedures *879 required to enroll their children in an appropriate educational program. Such announcements should include the listing of a special answering service telephone number to be established by defendants in order to (a) compile the names, addresses, phone numbers of such children who are presently not attending school and (b) provide further information to their parents or guardians as to the procedures required to enroll their children in an appropriate educational program.

7. Within twenty-five (25) days of the entry of this order, defendants shall file with the Clerk of this Court, an up-to-date list showing, for every additional identified child, the name of the child's parent or guardian, the child's name, age, address and telephone number, the date of his suspension, expulsion, exclusion or denial of placement and, without attributing a particular characteristic to any specific child, a breakdown of such list, showing the alleged causal characteristics for such nonattendance (e. g., educable mentally retarded, trainable mentally retarded, emotionally disturbed, specific learning disability, crippled/other health impaired, hearing impaired, visually impaired, multiple handicapped) and the number of children possessing each such alleged characteristic.

8. Notice of this order shall be given by defendants to the parent or guardian of each child resident in the District of Columbia who is now, or was during the 1971-72 school year or the 1970-71 school year, excluded, suspended or expelled from publicly-supported educational programs or otherwise denied a full and suitable publicly-supported education for any period in excess of two days. Such notice shall include a statement that each such child has the right to receive a free educational assessment and to be placed in a publicly-supported educational program suited to his needs. Such notice shall be sent by registered mail within five (5) days of the entry of this order, or within five (5) days after such child first becomes known to any defendant. Provision of notification for non-reading parents or guardians will be made.

9. a. Defendants shall utilize public or private agencies to evaluate the educational needs of all identified "exceptional" children and, within twenty (20) days of the entry of this order, shall file with the Clerk of this Court their proposal for each individual placement in a suitable educational program, including the provision of compensatory educational services where required.

b. Defendants, within twenty (20) days of the entry of this order, shall, also submit such proposals to each parent or guardian of such child, respectively, along with a notification that if they object to such proposed placement within a period of time to be fixed by the parties or by the Court, they may have their objection heard by a Hearing Officer in accordance with procedures required in Paragraph 13.e., below.

10. a. Within forty-five (45) days of the entry of this order, defendants shall file with the Clerk of the Court, with copy to plaintiffs' counsel, a comprehensive plan which provides for the identification, notification, assessment, and placement of class members. Such plan shall state the nature and extent of efforts which defendants have undertaken or propose to undertake to

(1) describe the curriculum, educational objectives, teacher qualifications, and ancillary services for the publicly-supported educational programs to be provided to class members; and,

(2) formulate general plans of compensatory education suitable to class members in order to overcome the present effects of prior educational deprivations,

(3) institute any additional steps and proposed modifications designed to implement the matters decreed in paragraph 5 through 7 hereof and other requirements of this judgment.

11. The defendants shall make an interim report to this Court on their performance *880 within forty-five (45) days of the entry of this order. Such report shall show:

(1) The adequacy of Defendants' implementation of plans to identify, locate, evaluate and give notice to all members of the class.

(2) The number of class members who have been placed, and the nature of their placements.

(3) The number of contested hearings before the Hearing Officers, if any, and the findings and determinations resulting therefrom.

12. Within forty-five (45) days of the entry of this order, defendants shall file with this Court a report showing the expunction from or correction of all official records of any plaintiff with regard to past expulsions, suspensions, or exclusions effected in violation of the procedural rights set forth in Paragraph 13 together with a plan for procedures pursuant to which parents, guardians, or their counsel may attach to such students' records any clarifying or explanatory information which the parent, guardian or counsel may deem appropriate.

13. Hearing Procedures.

a. Each member of the plaintiff class is to be provided with a publicly-supported educational program suited to his needs, within the context of a presumption that among the alternative programs of education, placement in a regular public school class with appropriate ancillary services is preferable to placement in a special school class.

b. Before placing a member of the class in such a program, defendants shall notify his parent or guardian of the proposed educational placement, the reasons therefor, and the right to a hearing before a Hearing Officer if there is an objection to the placement proposed. Any such hearing shall be held in accordance with the provisions of Paragraph 13.e., below.

c. Hereinafter, children who are residents of the District of Columbia and are thought by any of the defendants, or by officials, parents or guardians, to be in need of a program of special education, shall neither be placed in, transferred from or to, nor denied placement in such a program unless defendants shall have first notified their parents or guardians of such proposed placement, transfer or denial, the reasons therefor, and of the right to a hearing before a Hearing Officer if there is an objection to the placement, transfer or denial of placement. Any such hearings shall be held in accordance with the provisions of Paragraph 13.e., below.

d. Defendants shall not, on grounds of discipline, cause the exclusion, suspension, expulsion, postponement, interschool transfer, or any other denial of access to regular instruction in the public schools to any child for more than two days without first notifying the child's parent or guardian of such proposed action, the reasons therefor, and of the hearing before a Hearing Officer in accordance with the provisions of Paragraph 13.f., below.

e. Whenever defendants take action regarding a child's placement, denial of placement, or transfer, as described in Paragraphs 13.b. or 13.c., above, the following procedures shall be followed.

(1) Notice required hereinbefore shall be given in writing by registered mail to the parent or guardian of the child.

(2) Such notice shall:

(a) describe the proposed action in detail;

(b) clearly state the specific and complete reasons for the proposed action, including the specification of any tests or reports upon which such action is proposed;

(c) describe any alternative educational opportunities available on a permanent or temporary basis;

(d) inform the parent or guardian of the right to object to the proposed action at a hearing before the Hearing Officer;

(e) inform the parent or guardian that the child is eligible to receive, at no charge, the services *881 of a federally or locally funded diagnostic center for an independent medical, psychological and educational evalution and shall specify the name, address and telephone number of an appropriate local diagnostic center;

(f) inform the parent or guardian of the right to be represented at the hearing by legal counsel; to examine the child's school records before the hearing, including any tests or reports upon which the proposed action may be based, to present evidence, including expert medical, psychological and educational testimony; and, to confront and cross-examine any school official, employee, or agent of the school district or public department who may have evidence upon which the proposed action was based.

(3) The hearing shall be at a time and place reasonably convenient to such parent or guardian.

(4) The hearing shall be scheduled not sooner than twenty (20) days waivable by parent or child, nor later than forty-five (45) days after receipt of a request from the parent or guardian.

(5) The hearing shall be a closed hearing unless the parent or guardian requests an open hearing.

(6) The child shall have the right to a representative of his own choosing, including legal counsel. If a child is unable, through financial inability, to retain counsel, defendants shall advise child's parents or guardians of available voluntary legal assistance including the Neighborhood Legal Services Organization, the Legal Aid Society, the Young Lawyers Section of the D. C. Bar Association, or from some other organization.

(7) The decision of the Hearing Officer shall be based solely upon the evidence presented at the hearing.

(8) Defendants shall bear the burden of proof as to all facts and as to the appropriateness of any placement, denial of placement or transfer.

(9) A tape recording or other record of the hearing shall be made and transcribed and, upon request, made available to the parent or guardian or his representative.

(10) At a reasonable time prior to the hearing, the parent or guardian, or his counsel, shall be given access to all public school system and other public office records pertaining to the child, including any tests or reports upon which the proposed action may be based.

(11) The independent Hearing Officer shall be an employee of the District of Columbia, but shall not be an officer, employee or agent of the Public School System.

(12) The parent or guardian, or his representative, shall have the right to have the attendance of any official, employee or agent of the public school system or any public employee who may have evidence upon which the proposed action may be based and to confront, and to cross-examine any witness testifying for the public school system.

(13) The parent or guardian, or his representative, shall have the right to present evidence and testimony, including expert medical, psychological or educational testimony.

(14) Within thirty (30) days after the hearing, the Hearing Officer shall render a decision in writing. Such decision shall include findings of fact and conclusions of law and shall be filed with the Board of Education and the Department of Human Resources and sent by registered mail to the parent or guardian and his counsel.

(15) Pending a determination by the Hearing Officer, defendants shall take no action described in Paragraphs 13.b. or 13.c., above, if the child's parent or guardian objects to such action. Such objection must be in writing and postmarked within five (5) days of *882 the date of receipt of notification hereinabove described.

f. Whenever defendants propose to take action described in Paragraph 13.d., above, the following procedures shall be followed.

(1) Notice required hereinabove shall be given in writing and shall be delivered in person or by registered mail to both the child and his parent or guardian.

(2) Such notice shall

(a) describe the proposed disciplinary action in detail, including the duration thereof;

(b) state specific, clear and full reasons for the proposed action, including the specification of the alleged act upon which the disciplinary action is to be based and the reference to the regulation subsection under which such action is proposed;

(c) describe alternative educational opportunities to be available to the child during the proposed suspension period;

(d) inform the child and the parent or guardian of the time and place at which the hearing shall take place;

(e) inform the parent or guardian that if the child is thought by the parent or guardian to require special education services, that such child is eligible to receive, at no charge, the services of a public or private agency for a diagnostic medical, psychological or educational evaluation;

(f) inform the child and his parent or guardian of the right to be represented at the hearing by legal counsel; to examine the child's school records before the hearing, including any tests or reports upon which the proposed action may be based; to present evidence of his own; and to confront and cross-examine any witnesses or any school officials, employees or agents who may have evidence upon which the proposed action may be based.

(3) The hearing shall be at a time and place reasonably convenient to such parent or guardian.

(4) The hearing shall take place within four (4) school days of the date upon which written notice is given, and may be postponed at the request of the child's parent or guardian for no more than five (5) additional school days where necessary for preparation.

(5) The hearing shall be a closed hearing unless the child, his parent or guardian requests an open hearing.

(6) The child is guaranteed the right to a representative of his own choosing, including legal counsel. If a child is unable, through financial inability, to retain counsel, defendants shall advise child's parents or guardians of available voluntary legal assistance including the Neighborhood Legal Services Organization, the Legal Aid Society, the Young Lawyers Section of the D. C. Bar Association, or from some other organization.

(7) The decision of the Hearing Officer shall be based solely upon the evidence presented at the hearing.

(8) Defendants shall bear the burden of proof as to all facts and as to the appropriateness of any disposition and of the alternative educational opportunity to be provided during any suspension.

(9) A tape recording or other record of the hearing shall be made and transcribed and, upon request, made available to the parent or guardian or his representative.

(10) At a reasonable time prior to the hearing, the parent or guardian, or the child's counsel or representative, shall be given access to all records of the public school system and any other public office pertaining to the child, including any tests or reports upon which the proposed action may be based.

*883 (11) The independent Hearing Officer shall be an employee of the District of Columbia, but shall not be an officer, employee or agent of the Public School System.

(12) The parent or guardian, or the child's counsel or representative, shall have the right to have the attendance of any public employee who may have evidence upon which the proposed action may be based and to confront and to cross-examine any witness testifying for the public school system.

(13) The parent or guardian, or the child's counsel or representative, shall have the right to present evidence and testimony.

(14) Pending the hearing and receipt of notification of the decision, there shall be no change in the child's educational placement unless the principal (responsible to the Superintendent) shall warrant that the continued presence of the child in his current program would endanger the physical well-being of himself or others. In such exceptional cases, the principal shall be responsible for insuring that the child receives some form of educational assistance and/or diagnostic examination during the interim period prior to the hearing.

(15) No finding that disciplinary action is warranted shall be made unless the Hearing Officer first finds, by clear and convincing evidence, that the child committed a prohibited act upon which the proposed disciplinary action is based. After this finding has been made, the Hearing Officer shall take such disciplinary action as he shall deem appropriate. This action shall not be more severe than that recommended by the school official initiating the suspension proceedings.

(16) No suspension shall continue for longer than ten (10) school days after the date of the hearing, or until the end of the school year, whichever comes first. In such cases, the principal (responsible to the Superintendent) shall be responsible for insuring that the child receives some form of educational assistance and/or diagnostic examination during the suspension period.

(17) If the Hearing Officer determines that disciplinary action is not warranted, all school records of the proposed disciplinary action, including those relating to the incidents upon which such proposed action was predicated, shall be destroyed.

(18) If the Hearing Officer determines that disciplinary action is warranted, he shall give written notification of his findings and of the child's right to appeal his decision to the Board of Education, to the child, the parent or guardian, and the counsel or representative of the child, within three (3) days of such determination.

(19) An appeal from the decision of the Hearing Officer shall be heard by the Student Life and Community Involvement Committee of the Board of Education which shall provide the child and his parent or guardian with the opportunity for an oral hearing, at which the child may be represented by legal counsel, to review the findings of the Hearing Officer. At the conclusion of such hearing, the Committee shall determine the appropriateness of and may modify such decision. However, in no event may such Committee impose added or more severe restrictions on the child.

14. Whenever the foregoing provisions require notice to a parent or guardian, and the child in question has no parent or duly appointed guardian, notice is to be given to any adult with whom the child is actually living, as well as to the child himself, and every effort will be made to assure that no child's rights are denied for lack of a parent or duly appointed guardian. Again provision for such notice to non-readers will be made.

15. Jurisdiction of this matter is retained to allow for implementation, modification and enforcement of this Judgment and Decree as may be required.

NOTES

[1] See the following reports compiled by the District of Columbia Board of Education, Division of Planning, Research and Evaluation:

(1) Regularly Funded Special Education Programs in the District of Columbia Public Schools, 1970-71;

(2) ESEA Title III Federal Programs of Special Education in the District of Columbia Public Schools, 1970-71;

(3) Membership: Special Education Programs and Services, 1970-71: Non Public School Resources.

[2] See report entitled, "Description of Projected Activities for Fiscal Year 1972 for the Education of Handicapped Children," March 15, 1971.

[3] The Court is informed that since the filing of this action some of the named plaintiffs have been placed in private schools, some in public schools, and others remain excluded.

[4] District of Columbia Code, 31-101-et seq.

[5] District of Columbia Code, 31-103.

[6] Defendant Cassell filed a separate Answer to the Complaint consenting to the relief prayed for and also filed a memorandum in support of plaintiff's proposed Order and Decree.

[7] The Board of Education has not adopted this plan.

[8] This requirement is equally applicable to the Department of Human Resources, Social Services Administration, with respect to wards committed to them pursuant to D.C.Code Sections 3-116 and 3-117.

[9] The plaintiffs' proposed "Order and Decree" suggests plans, procedures and time tables similar to those proposed by defendant, Board of Education.

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Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972)

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U.S. District Court for the District of Columbia - 348 F. Supp. 866 (D.D.C. 1972) August 1, 1972 Peter MILLS et al., Plaintiffs, v. BOARD OF EDUCATION OF the DISTRICT OF COLUMBIA et al., Defendants. Civ. A. No. 1939-71. United States District Court, District of Columbia. August 1, 1972.

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Slide #9 Statutory Law: Section 504 of the Rehabilitation Act of 1973 (29 USC § 701)

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Slide #9 Statutory Law: Section 504 of the Rehabilitation Act of 1973 (29 USC § 701)

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Section 504 of the Rehabilitation Act of 1973 was the first law set to protect the rights of people with disabilities.

Section 504 ensures that students with disabilities are protected from exclusion and unequal treatment at school.

Section 504 requires that students with disabilities receive special education and aids, so to fulfill the requirements for FAPE.  A school counselor serves as an advocate for students as well as an effective communicator, collaborator, problem solver, interventionist, liaison, and mental health specialist. All of these make them an essential member of the 504 team.

Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 29 USC § 701, 87 Stat. 394 (1973)

https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/section-504-rehabilitation-act-of-1973

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(a) Promulgation of rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Development Disabilities Act of 1978. Copies of any proposed regulations shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date of which such regulation is so submitted to such committees. See also 29 CFR Part 32 and 29 CFR Part 37.
(b) "Program or activity" defined
For the purposes of this section, the term "program or activity" means all of the operations of --

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 8801 of Title 20), system of vocational education, or other school system;

(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship --

(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) any other entity which is established by two or more of the entities described in paragraph (l), (2) or (3); any part of which is extended Federal financial assistance.

(c) Significant structural alterations by small providers

Small providers are not required by subsection (a) to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services is available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988.
(d) Standards used in determining violation of section
The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections related to employment.
Section 794a. Remedies and attorney fees
(a)(1) The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of sections 706(f) through 706 (k) [42 U.S.C. 2000e-5(f) through k)] shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternative therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.

(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq)shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistant under section 794 of this title.

(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

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(a) Promulgation of rules and regulations No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

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Slide #10 Local Administrative Law/Policy/Rule

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Slide #10 Local Administrative Law/Policy/Rule

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San Angelo Independent School District Student Handbook (2019)

School counselors are available to both students and parents. Personal counseling is also available to assist students in areas of personal concerns, including social, family, emotional or mental health issues, or substance abuse. Parents may contact counselors if they are concerned about their child’s mental or emotional health. Counselors can provide a list of resources that may help. All school districts must consider any academic or behavior support services for students who are having learning difficulties, need special education, or section 504 services. Special education referrals can be done through written or verbal request by a parent (SAISD, 2019).

San Angelo ISD Student Handbook. (2019). Counseling; A student who has learning difficulties or who needs special education or section 504 services. (2019). Retrieved from https://www.saisd.org/docs/student_services/Student%20Handbook%202019-2020.pdf

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A.10. Underserved and At-Risk Populations

f. Advocate for the equal right and access to free, appropriate public education for all youth, in which students are not stigmatized or isolated based on their housing status, disability, foster care, special education status, mental health or any other exceptionality or special need.

g. Recognize the strengths of students with disabilities as well as their challenges and provide best practices and current research in supporting their academic, career and social/emotional needs.

School counselors provide equitable educational access and success through advocacy, leadership, collaboration, and consultation. They advocate for an education system that provides the best learning environments for all students (ASCA, 2016).

American School Counseling Association (ASCA). (2016). ASCA ethical standards for school counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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Article - School Counselors’ Attitudes Towards Providing Services to Students Receiving Section 504 Classroom Accommodations

Counselors question their capabilities when assisting students with special needs. This study examined school counselors’ training and attitudes toward providing services to students with learning disabilities who qualified for services only under Section 504 of the Rehabilitation Act. Counselors strongly support providing services to students with special needs, but felt they lack educational experience, and feel unprepared to implement specialized services. School counselors agree they would benefit from additional training when counseling students with learning disabilities (Romano, Paradise & Green, 2009).

Romano, D. M., Paradise, L. V., & Green, E. J. (2009). School Counselors’ Attitudes towards Providing Services to Students Receiving Section 504 Classroom Accommodations: Implications for School Counselor Educators. Journal of School Counseling, 7(37). Retrieved from https://files.eric.ed.gov/fulltext/EJ886151.pdf

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Slide #13 Best Practices for Legal Compliance

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Slide #13 Best Practices for Legal Compliance

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Under the Individuals with Disabilities Education Act (IDEA), students with disabilities are entitled to free appropriate public education (FAPE) in a general education setting in the least restrictive environment (LRE),regardless of the student’s abilities.

IDEA requires that schools conduct appropriate evaluations of students who are suspected of having a disability by a team of knowledgeable and trained evaluators. This team includes the student, parent of student, general and special education teacher, evaluation expert, school system representative, and various specialists, done on a non-discriminatory basis.

When students are evaluated, they should not be subjected to unnecessary assessments or testing. Evaluations are for the student’s education, instruction, and their eligibility for special education services.

An Individualized Education Plan (IEP) under IDEA, is a written document that is developed by the school’s IEP team using evaluation information to meet the student’s individual needs. Information on the IEP should include information about the student’s present educational performance, annual and benchmarking goals, services and additional aids, and any instances when and why a student is not partaking in the general classroom.

Family involvement is at a huge component of IDEA, 504, and special education accommodations for students with special needs and disabilities. This means parents of a child with disabilities are a part of any group who decides placement and LRE of that child. Working together pinpoints the exact support, adaptations and modifications that are necessary to facilitate academic success.

Under IDEA, parents have a right to review any educational records pertaining to their child, are notified of meetings prior to evaluations, and obtain and consider an Independent Educational Evaluation (IEE) during meetings.

School counselors and any staff in direct contact with a student with disabilities are required by their districts to comply with any special education, 504, or IEP accommodations that have been set.

Counselors who work with students with disabilities must be knowledgeable in the best and most current practices, educational laws, and special education regulations. This ensures they are fully supported to excel academically, personally, socially, and with career development. Counselors will work in a variety of settings including one-on-one, in groups, in special education classrooms, and in regular classrooms.

Removal of students with disabilities for regular classrooms should only transpire if the severity of the disability is prohibiting the student(s) from satisfactory performance.

Parents have the right to request mediation or due process hearings with state-level education agencies, and beyond that may appeal the decision in state or federal court if there are any disagreements (Saleh, n.d.).

Saleh, M. (n.d.). Your child’s rights: 6 principles of IDEA. Retrieved from https://www.smartkidswithld.org/getting-help/know-your-childs-rights/your-childs-rights-6-principles-of-idea/

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The Individuals with Disabilities Education Act (IDEA) was enacted by the federal government to ensure that all children with disabilities are provided with "equality of [educational] opportunity, full participation, independent living, and economic self-sufficiency."

Originally adopted in 1975 and amended in 2004, the IDEA aims to curb educational problems associated with low expectations and insufficient focus on alternative research, teaching methods, and tools. Following are the six major principles of the IDEA, focusing on students' rights and the responsibilities of public schools to children with disabilities.

1. Free Appropriate Public Education

Under the IDEA, every child with a disability is entitled to a Free Appropriate Public Education (FAPE). The IDEA emphasizes special education and related services, which should be designed to meet a child's "unique needs and prepare them for further education, employment, and independent living."

Furthermore, courts have held that the IDEA requires schools to prepare Individualized Education Plans, which confer "meaningful educational benefit" to children with disabilities. The "meaningful educational benefit" requirement includes a focus on raised student expectations, appropriate progress, and transition into postsecondary education and independent living.

Public schools and local school boards are responsible for ensuring that every child with a disability receives a FAPE.

2. Appropriate Evaluation

The IDEA requires that schools conduct "appropriate evaluations"of students who are suspected of having a disability. An appropriate evaluation must be implemented by a team of knowledgeable and trained evaluators, must utilize sound evaluation materials and procedures, and must be administered on a non-discriminatory basis.

Children should not be subjected to unnecessary assessments or testing, and evaluations must be geared toward planning for the child's education and future instruction. Finally, an appropriate evaluation must determine and make recommendations regarding a child's eligibility for special education services in a timely manner.

3. Individualized Education Plan

The Individualized Education Plan (IEP) was established by the IDEA to help ensure every child's access to a Free Appropriate Public Education. The IEP is a written document, developed by an IEP team, which draws upon existing evaluation information in order to meet a student's unique educational needs.

Under the IDEA, an IEP must include information regarding a student's present levels of educational performance, annual goals and benchmarking objectives, services and supplementary aids to be received, and a detailed explanation of instances where a student is not participating in the general classroom and why.

An IEP is also required to include information regarding consistent reporting on student progress as well as "transition" to adult life. Finally, it is required that an IEP account for the planning concerns of the parents and child, the strengths of a particular child, and the specific "academic, developmental, and functional needs" of the child.

4. Least Restrictive Environment

The IDEA places a strong emphasis on placement in a general education setting. Under the IDEA, a student is guaranteed placement in the Least Restrictive Environment (LRE) possible. Therefore, an IEP team must explore a number of alternatives for enabling a student to participate in the general education classroom. These may include: classroom modifications, supplemental aids and services, alternative instructional methods, etc.

If an IEP team determines that a student cannot be satisfactorily educated in a general education setting, then the team must make responsible efforts to determine the LRE for that student outside of the general classroom.

5. Parent Participation

The IDEA has a special provision for "parent participation in placement decisions." Under this provision, state educational agencies and local school boards must ensure that the parents of a child with a disability are members of any group that makes decisions regarding the placement and LRE of that child.

Parents have the right to equal participation in this process, and are entitled to notification of a planned evaluation, access to planning and evaluation materials, and involvement in all meetings regarding their child's placement. Additionally, parents retain the right to refuse further evaluation of their child. Both students and parents must be invited to IEP meetings, and the IDEA explicitly establishes a role for the parent as equal participant and decision maker.

6. Procedural Safeguards

Finally, the IDEA establishes procedural safeguards to help parents and students enforce their rights under federal law. The primary purpose of this requirement is twofold: safeguards protect parental access to information pertaining to placement and transition planning; and procedures are put in place to resolve disagreements between parents and schools regarding the placement of a student.

Under the IDEA procedural safeguards, parents have a right to review all educational records pertaining to their child, receive notice prior to meetings about their child's evaluation, placement, or identification, and to obtain an Independent Educational Evaluation (IEE) for consideration at such meetings.

If disagreements arise, parents have the right to request mediation or due process hearings with state-level education agencies, and beyond that may appeal the decision in state or federal court.
Matthew Saleh is a Research Fellow at Cornell University's Employment and Disability Institute and a Research Associate at the Campaign for Educational Equity at Teachers College, Columbia University. He received his J.D. from the Syracuse University College of Law and is currently a doctoral candidate at Columbia University.
Related Smart Kids Topics

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Your Child's Rights: 6 Principles of IDEA

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The Individuals with Disabilities Education Act (IDEA) was enacted by the federal government to ensure that all children with disabilities are provided with "equality of [educational] opportunity, full participation, independent living, and economic self-sufficiency."