Disability Law Commons^™

Getting A Special Education: Parents, Lawyers, And The Politics Of Disability In Postwar Pennsylvania, Emma Gabriel

Swarthmore Undergraduate History Journal

This paper explores the relationship between white parent advocates in Pennsylvania and public interest lawyers, whose litigation efforts legitimized the construction of an implicitly white disabled class in the mid-twentieth century. This analysis sheds light on the ways in which school reform became a key element in the simultaneous construction and renegotiation of intellectual disability and race in the postwar era, and foregrounded the adoption of the Individuals with Disabilities Education Act (IDEA) in 1975.

What Are The Influential Factors In The Settlement Process For Due Process Disputes Under The Individuals With Disabilities Education Act?, Perry A. Zirkel, Ann Vevier Lockwood, Linling Shen

Akron Law Review

This article reports on the background, method, findings, and implications of a national survey of parent-side attorneys, mediators, and school-side attorneys who all have extensive experience in the settlement of special education disputes. The focus is on identifying the major factors that influence whether these disputes are settled in the context of due process hearings.

The Idea Of Inclusivity: The Fallacy Of School Choice, Harleigh Summerville

Arkansas Law Notes

As calls for reform in public education grow, students with disabilities have become the poster children for a failing system that is not equipped to handle students’ varying needs. With the number of children receiving services for learning disabilities growing, some argue that the current system not only is failing to provide students with appropriate education but is actively causing harm. Issues gaining adequate funding, disparities in educational access to racial minorities, and failure to adhere to federal mandates have made it difficult for public schools to meet the individualized needs of all students, particularly students with disabilities. One example …

Private Religious Schools And Disability Discrimination, Kevin Timpe

Touro Law Review

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

An Analysis Of Due Process Hearing Decisions For “§ 504-Only” Students, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

Many empirical analyses have tracked the trends for both the frequency and outcomes of due process hearing decisions under the IDEA. However, the literature entirely lacks any such analysis of due process hearing decisions under § 504. This gap in the literature is largely attributable to two overlapping factors: these decisions are much less numerous than those under the IDEA, and they are not publicly available. The purpose of this article is to address this gap in the professional literature through an exploratory analysis of the frequency and outcomes of due process hearings for § 504-only students. Part I of …

Conducting A Pilot Evaluation Of A Civic-Engagement Program For Youth With Disabilities, Megan Best, Amanda Johnston, Sarah Demissie, Julianna Kim, Ruchi Mendiratta Khanna, Kelly Fulton, Abby Hardy, Catherine Cheung, Timothy Kunzier, Oscar Hughes, Meghan M. Burke, Zachary Rossetti

Developmental Disabilities Network Journal

The Individuals with Disabilities Education Act (IDEA) is the federal law that ensures all students with disabilities have access to a free and appropriate public education. In the last IDEA reauthorization in 2004, only 1% of public comments were from individuals with disabilities—the population that IDEA serves. To ensure that the feedback of individuals with disabilities is reflected in the next IDEA reauthorization, it is important to support them to learn about IDEA and advocate. To this end, for this pilot study, 16 transition-aged youth with disabilities participated in a 6-hour civic-engagement program across four states to learn about IDEA …

Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas

Journal of Race, Gender, and Ethnicity

This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …

The Outcomes Of Fully Adjudicated Impartial Hearings Under The Idea: A Nationally Representative Analysis With And Without New York, Perry A. Zirkel, Diane M. Holben

Journal of the National Association of Administrative Law Judiciary

The Individuals with Disabilities Education Act (IDEA) provides eligible students with the right to a free appropriate public education (FAPE) as specified in an individualized education program (IEP). An unusual feature of the IDEA is providing the parents of students with disabilities and their school districts with the right to a binding “impartial due process hearing” at the administrative level, subject to appeal. This mechanism for administrative adjudication has been the subject of continuing policy debate and occasional statutory refinements. One of the ongoing concerns in this policy consideration has been the win-loss rate of due process hearings (DPHs). Similarly, …

Options For Youth With Disabilities: A Focus On Competitive Integrated Employment Limits, Tatyana Safronova

University of the District of Columbia Law Review

For people with disabilities, employment outcomes are discouraging. In 2021, only 19% were employed, a third of the employment rate for people without disabilities.1 Disabled individuals worked part-time because they could not find full-time work or because of a reduction in hours. 2 Fewer disabled persons had bachelor or higher degrees, and fewer worked in professional and managerial positions than people without disabilities. 3 To make it possible for disabled adults to get well-paying jobs, we must ensure that disabled youth have a solid educational foundation. That requires that more youth graduate high school; only 68.2% of students with disabilities …

Impartial Hearings Under The Idea: Updated Legal Issues And Answers, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This updated question-and-answer document is specific to impartial hearing officers (IHOs) and the hearings that they conduct under the Individuals with Disabilities Education Act (IDEA). The coverage does not extend to the alternate third-party dispute decisional mechanism under the IDEA, the complaint resolution process (CRP) except to the extent that this alternative mechanism intersects with IHO issues. Similarly, the scope only extends secondarily to the IHO’s remedial authority, which is the subject of separate comprehensive coverage. The sources are largely limited to the pertinent IDEA legislation and regulations, court decisions, and the U.S. Department of Education’s Office of Special Education’s …

The Proactive Model: How To Better Protect The Right To Special Education For Incarcerated Youth, John Bignotti

Indiana Law Journal

The Individuals with Disabilities Education Act (IDEA) guarantees access to a specialized, appropriate public education for youth with disabilities in the United States. While progress has been made and this right to education extends to incarcerated youth as well as those outside the juvenile justice system, there is nonetheless a fundamental limitation on how this federal requirement is imposed in the carceral context: it is enforced through primarily reactive mechanisms. Lawsuits, state compliance regimes, and consent decrees can hold states and juvenile facilities accountable after systemic failures to comply with the IDEA; however, the inherent inconsistency and slow pace of …

Doing The Right Thing, The Right Way, The First Time: Decision-Making In Public And Private Arenas Regarding The Use Of Service Animals, Maureen E. Lally-Green, Annemarie Harr Eagle Esq., Bridget M. Green

University of Arkansas at Little Rock Law Review

No abstract provided.

The Missing Piece Of The Puzzle: The Intersection Of Race And Special Education, Tsega Zewdneh Shiferaw

University of the District of Columbia Law Review

The privileges allotted to Americans cannot be compared to any other country’s citizens. Americans have the liberty of saying what they want, thinking what they want, and acting freely in public. Nebiyat Shiferaw (“Nebiyat”) is a thirty-year-old African American man who is unable to speak and live independently because he has autism, also known as autism spectrum disorder (“ASD”). Nebiyat does not experience the same liberties as most Americans; he has gone through special education programs and has overcome discrimination, not because of the Individuals with Disabilities Education Act (“IDEA”), but because of his parents advocating for him. As a …

Everything Is Bigger In Texas: Including The Horrendously Inadequate Attempts At Providing Special Education And Related Services To All Children With Disabilities, Alexandria R. Booterbaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Without immediate action, the “corrections” made by the Texas legislature to meet the appropriateness requirement for special education will result in imminent peril for students with an autism spectrum disorder (ASD) as well as their parents. Tens of thousands of children fall between the cracks as a result of Texas’ illegalities and the lack of responsibility Texas’ lawmakers and Texas Education Agency (TEA) have for special education. If Texas does not fully devote itself to a significant overhaul of its special education practices, students will continue to be left behind.

Congress enacted the Individuals with Disabilities Education Act (IDEA) because …

The Perceptions Of Educators On Transition Planning & The Postsecondary Transition Readiness Outcomes Of Students With Disabilities, Marisa Duarte

Dissertations

The purpose of this quantitative descriptive research was to gain the perspective of educators on transition planning for students with disabilities in two public school districts in the state of Kentucky. The Individual Disabilities Education Act and Workforce Innovation Opportunities Act are laws requiring students with disabilities to be transition ready upon their graduation from high school. A sample of 12 educators, representing two Kentucky districts, who participate in transitioning students with disabilities, completed The Secondary Educator Transition Questionnaire survey. Data from the districts’ state report cards indicated students with disabilities were not transition ready in comparison with students without …

State Laws For Due Process Hearings Under The Individuals With Disabilities Education Act Iv: Expedited Hearings, Andrew M.I. Lee, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This article is a follow-up to a triad of analyses of state law additions to the basic requirements of the Individuals with Disabilities Education Act (IDEA) for due process hearings (DPHs). The former three articles covered the pre-hearing, hearing, and post-hearing stages of IDEA DPHs. The present article focuses on expedited DPHs, canvassing state law provisions specific to this more rapid, specialized proceeding in the IDEA. This article covers IDEA foundational requirements for expedited DPHs, and then summarizes and codes the state law provisions that supplement the federal template. Additionally, this article provides a discussion of federal preemption of state …

This Aggression Will Not Stand, Schools: The Need For Federal Legislation Protecting Bullied Students With Disabilities, Russell A. Vogel

Touro Law Review

A boy with Autism comes home from school, visibly upset. His parents ask him why, and he responds that nobody in his class likes him. To his parents’ horror, they learn that their son’s teacher encouraged a class discussion about why they dislike their son. When the boy’s parents complain to the school about this issue, school administrators brush it aside. The next day, students sitting near the boy move their desks away from him and taunt him for the way he acts every time he tries to socialize with them. The boy then refuses to go to school each …

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …

State Laws For Due Process Hearings Under The Individuals With Disabilities Education Act Iii: The Pre-Hearing Stage, Andrew M.I. Lee, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This article is the third in a triad of analyses of state law additions to the basic requirements of the Individuals with Disabilities Education Act (IDEA) for due process hearings (DPHs). The first two articles of this series covered the hearing and post-hearing stages of IDEA DPHs. The purpose of this follow-up analysis is to supplement the earlier articles by canvassing state law provisions specific to the pre-hearing stage. After an introduction and overview of the literature, this article covers IDEA foundational requirements for DPHs, and then summarizes and codes the state law provisions that supplement the federal template. As …

Improving The Legal And Regulatory Framework Of Restraint And Seclusion In D.C. Public Schools, James Gallagher

Upper Level Writing Requirement Research Papers

No abstract provided.

Special Education No Man's Land, Adrián E. Alvarez

St. John's Law Review

(Excerpt)

Since 2014, unaccompanied immigrant children have migrated to the United States in staggering numbers. The vast majority come from the Northern Triangle countries of Central America—El Salvador, Guatemala, and Honduras—and many are fleeing some of the highest homicide rates in the world. Immigration lawyers have highlighted many problems with the federal regime that cares for these children before they are released to family members or other adults living in the United States while their immigration cases move forward. Yet there is one group of unaccompanied minors that is not even on the radar of many advocates: unaccompanied children with …

Mediation In Education For Foster Care, Anelise Powers

Pepperdine Dispute Resolution Law Journal

There are well over 400,000 children in foster care. Education can improve the well-being of foster children in critical development stages of life and support their economic success in adulthood. In recent years, the law has given greater priority to the education of foster children, and foster children are often eligible for additional services. However, a common trend in foster care research is that foster children, though eligible, do not always receive the services created to assist them. This paper will explore how improving mediation related to education and foster care can help maximize the impact of efforts to improve …

Impartial Hearings Under The Idea: Legal Issues And Answers, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Endrew F. Clairvoyance, Mark C. Weber

Touro Law Review

No abstract provided.

Battling Implicit Bias In The Idea To Advocate For African American Students With Disabilities, Dustin Rynders

Touro Law Review

No abstract provided.

Free Appropriate Public Education After Endrew F. V. Douglas County School District (2017), Terrye Conroy, Mitchell L. Yell

Touro Law Review

No abstract provided.

Endrew F. Clairvoyance, Mark Weber

College of Law Faculty

The Second Circuit Court of Appeals has declared that “Prior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.,” the 2017 Supreme Court decision interpreting the Individuals with Disabilities Education Act obligation to furnish students with disabilities free, appropriate public education. This Essay considers whether that statement is accurate, and concludes that while some of the past Second Circuit decisions fit comfortably with Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, others do not. The Essay submits that the court of appeals should confess a lack of clairvoyance in its earlier …

Foreword To The Symposium: Current Issues In Disability Rights Law, Samuel J. Levine

Touro Law Review

No abstract provided.

Preschool And Lead Exposed Kids: The Idea Just Isn’T Good Enough, Karen Syma Czapanskiy

Touro Law Review

No abstract provided.

Canines In The Classroom Redux: Applying The Ada Or The Idea To Determine Whether A Student Should Be Allowed To Be Accompanied By A Service Animal At A Primary Or Secondary Educational Institution, Rebecca J. Huss

Touro Law Review

No abstract provided.