Legal Protections for Students with Special Needs
Do you or your child(ren) have special needs? Have you struggled to receive proper resources and tools to assist you or your child(ren) in getting a proper education? While special education laws and services continue to improve, gaps in these services tend to affect the most vulnerable communities.
In California, there are about 800,000 students that receive special education services. Special Education Services could be defined as “the individualized care that a person with a disability – whether physical, mental, behavioral, emotional, or learning difficulties – requires to ensure their safety, access to public amenities, or ability to succeed in certain contexts.”
Gaps in services can often lead to IEP’s that are not properly designed and/or implemented to ensure your child(ren) are able to access their curriculum. This can look like a variety of things such as improper learning materials, inaccessible environments, a lack of exclusivity which can result in discrimination from other students and even staff, and more.
With the growth of online learning in the wake of Covid, schools have struggled to comply with government mandated services required for students with special needs and online learning.
In the United States, the number of students ages 3–21 who received special education services under IDEA increased from 6.5 million, or 13 percent of total public-school enrollment, to 7.2 million, or 15 percent of total public-school enrollment.
California’s Department of Education breaks down different special needs into the following several different categories:
- Autism
- Deaf-blindness
- Deafness
- Emotional disturbance such as Depression, Anxiety, and Post Traumatic Stress Disorder (PTSD)
- Hard of hearing
- Learning disability
- Multiple disabilities
- Orthopedic impairment
- Other health impairment
- Specific learning disability
- Speech impairment
- Traumatic brain injury
- Visual impairment
What Legal Protections are there for students with Special Needs?
In California, students with special needs are protected through a variety of ways under California law and Federal Law.
1. Ensuring your and/or your child(ren)’s right to an education:
Individuals with Disabilities Education Act (IDEA) is a federal law that requires that all children with disabilities are to be given a free appropriate public education (FAPE). This means a student with special needs should have equal and fair access to the same degree of education that other students have. In California, it also requires that Education and Related Services must be provided to children up to the age of 22.
Under these laws, students are supposed to have individualized plans through a school to ensure that they have the tools and resources to help them succeed in school. These are often referred to as Individualized Education Plans (IEP’s).
Additionally, laws such as Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA) protect students with special needs under federal law.
Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services, from activities provided by State and local government entities.
2. Discrimination:
Moreover, students with disabilities have legal protections under discrimination laws like Title IX. Title IX is a federal law that protects against discrimination based on sex. Title IX was first enacted to provide female students and athletes more opportunities but has now come to protect against, sexual harassment, dating violence, lack of consent, domestic violence, stalking, exposure, transgender issues, and more.
In recent years, the Covid 19 pandemic has exacerbated many of the issues students with special needs face. With all schools in California having to shut down during quarantine, many schools were faced with how inaccessible many of their technologies were to students with special needs.
This became an even more prominent issue when schools returned to in person instruction, and some students had to make the hard choice to face truancy and continue to stay at home due to the increased health risks their disabilities involve.
During this time, California enacted an Independent Study pathway for students who were immunocompromised. Many students with disabilities were forced to turn to this option and lost essential services such as speech and language therapy, occupational therapy, etc. while the majority of students returned to in-person instruction.
California legislators acknowledged that special education services essential to a student’s IEP may not be ensured if a student chooses an Independent Study path. Many administrators have noted how difficult it is to provide students with a “free and appropriate public education,” under Independent Study.
These issues went as far as to turn into a civil rights lawsuit that has prompted California to author new legislation to support special needs students during virtual education.
3. Discipline and Students with Special Needs
Just recently, the Federal Department of Education enacted additional guidance on discriminatory discipline practices for students with disabilities. It aims to clarify and “describe schools’ responsibilities under Section 504 to ensure nondiscrimination against students based on disability when imposing student discipline.”
It also reiterates the requirement that schools must provide a Free Appropriate Public Education to students with disabilities.
These issues come at a time when there has been a surge of mental health related disciplinary issues. This guidance is aimed at helping schools comply with the law and maintain student’s rights, by ensuring students with disabilities are not discriminated against and that they are supported when addressing disability related behaviors.
4. How Can an Education Lawyer Help You?
Due to the variety of federal and state legal protections, including California Education Codes surrounding students with special needs, navigating these issues can be a complex process that oftentimes necessitates the aide of an attorney who is aware of the intricacies of these issues.
An education lawyer can assist you in evaluating your students’ IEP and taking the proper steps to work with your schools’ administration to make sure your students’ rights have not been violated. We can also assist in getting an IEP plan or 504 plan into place as well as obtain compensatory education for your student.
Additionally, if you are having issues with your school or district, hiring an attorney could help even the playing field as the school most likely will handle such issues through their attorney. An education lawyer can help you evaluate the strength and weaknesses of your claim and assist you in advocating for a proper education.
