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Legal Rights for Special Education Students

Answers for parents’ and other caregivers’ questions about special education laws for children with special needs. (Please see Frequently Asked Questions or FAQs for special education below...) Students and their parents have legal rights regarding special education. The public school system is responsible for providing all children with an education. Understanding parents’ legal rights in special education and the choices that should be made available to them (but sometimes are not offered) is the first step toward ensuring your child receives an appropriate education that meets his or her needs or, if necessary, challenging an inadequate response by the school system to a student’s needs and rights.

Free Telephone Consultation With A Maryland Special Education Lawyer

Attorney Harvey Schweitzer and his colleagues have been assisting clients regarding special education for many years. For a free15-minute telephone consultation with a special education lawyer...

Call Mr. Schweitzer at 301.469.3382.

Frequently Asked Questions

(please click on the questions below to go directly to the answers)
* What is special education?
* Special education laws
* Parents’ rights in special education

* When to contact a special education lawyer
and more to help you navigate special education law

What is special education?

Special education students have challenges that impede their ability to succeed in school. The challenges can include:

  • physical disabilities,
  • developmental disorders, or
  • emotional disorders. Despite the challenges that children with disabilities face, every student is entitled to an education, by law.

What special education laws and regulations apply to children with special needs?

Three laws apply to children with disabilities that affect their ability to succeed in school.

  1. Individuals with Disabilities Education Act (IDEA)
  2. Americans with Disabilities Act (ADA)
  3. Section 504 of the Rehabilitation Act of 1973

The Individuals with Disabilities Education Act (IDEA) requires schools to provide all children with a “free appropriate public education” (FAPE). The instructional program offered by the school must address the individual needs of the special education student. The IDEA includes many procedural and due process rights for parents. Unfortunately, the IDEA and the regulations that interpret it are complex, and courts frequently issue decisions that affect how the IDEA is put into action.

Other federal laws apply to special education students, as well, including the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973. These laws are designed to address different situations. The ADA is a civil rights law that prohibits discrimination based on disability. The ADA applies to schools and requires access to all programs and services for “qualified persons.” Section 504 of the Rehabilitation Act requires “reasonable accommodation” for children and adults with disabilities. For student with special needs, this can mean special study areas or assistance in taking tests.

What special education rights is a child entitled to?

By law, your child is entitled to a “free appropriate public education.” Your child may also be entitled to a “reasonable accommodation” for his or her special needs, and to an IEP — an Individualized Education Program. IEPs apply to special education students with learning disabilities.

To determine what services may be needed, parents are entitled to have their children evaluated and assessed to see whether they are disabled and what accommodations are appropriate for them. Parents may find out that they have a legal right to have their children evaluated by a professional of their own choosing—to receive a special ed assessment for their child—at the school system's expense. But note that the school system can reject the test results if the special ed assessment testing organization does not use the same "benchmarks" that the school system uses.

So, yes, it can be complicated. In general, special education laws provide many procedural and substantive rights that parents can use to ensure that their child is properly educated. Understanding those laws and parents’ rights in special education will help to ensure your child receives an appropriate education that enables him or her to succeed in school.

What legal rights do parents have regarding special ed?

The laws require a school to provide all children with an education. However, sometimes a school puts its own interests before a child’s, acts contrary to its obligations, or engages in illegal discrimination, thereby unjustly depriving your child of a proper education or special accommodation. IDEA makes parents equal partners with the school staff, but sometimes this goal is not fulfilled and a child’s needs have not been met. Children with special needs require an advocate to ensure that special education laws are followed.

What is the relationship between disciplinary action and special education?

Laws can affect how and under what circumstances a child can be disciplined. If a child who has, or is believed to have, a disabling condition, misbehaves or violates school rules, there must be a hearing to determine if the behavior was caused by a condition that would entitle the child to special education. These “manifestation” hearings are important because the outcome can decide whether or not a child will be punished.

When should I contact a special education lawyer?

An experienced, supportive special education attorney can assist you in confronting the school system and your child’s special education problems. An involved special education attorney will join with you in being a child advocate against the school system.

The biggest mistake people make is not consulting with a special education lawyer early in the process.

A legal consultation includes:

  • a thorough review of your situation,
  • an analysis of your special education rights,
  • information about your options, and
  • a possible legal strategy.

Depending on the complexity of your child’s situation, a consultation can be as simple as a review of records and a meeting. As far as the cost, expect a minimum of $1,000. Why spend this? Because then you know what special education rights you have and how to protect them. For example, you may discover that your child is entitled to special education services that will allow him or her to make meaningful progress—services that the school system has not offered to you. In addition to the first consultation there can be a need for follow up advice, due process complaint filing, a meeting of resolution, the mediation and lastly, possibly, the due process hearing.

People trust school officials, teachers and educators, and there are good reasons why such trust exists. However, school systems sometimes put their own interests first. Trusting the school in such a circumstance may prevent your child from receiving the education to which he or she is legally entitled. It is crucial to understand the ins and outs of how the school system works, and an experienced special education attorney will share this knowledge with you. The school system has lawyers “on call” who can and will assist the school at a moment’s notice. You may need the same.