copyright © 2011 pearson education inc. lectures by ? chapter 2 legal mandates michael horvat

Copyright © 2011 Pearson Education Inc.

Lectures by ?

Chapter 2Legal Mandates

Michael Horvat

Copyright © 2011 Pearson Education Inc. Developmental/Adapted Physical Education 5e

Case Study

• Eric is an 11th grade boy with Down syndrome. As with many students with Down syndrome, Eric is overweight. Physical education in Eric’s state is required of all students through the 10th grade. Given Eric’s IDEA 2004-recognized disability, he has, through grade 10, qualified for both regular and adapted physical education, and his IEP has focused helping him maintain a healthy lean body mass to fat ratio. Now that Eric is an 11th grader, his school, according to new language in IDEA 2004, is no longer required to provide him physical education, adapted or otherwise. Eric’s parents have asked his school district’s director of special education about what the school can and should do to ensure Eric continues to benefit from activity levels to help him maintain healthy body composition. They have suggested that, if federal special education laws no longer apply, perhaps one or more federal civil rights laws applicable to education might. The parents have indicated their intent to consult with the state’s primary special education advocacy group and, if necessary, a civil rights attorney for answers to ensure that all bases have been covered.


A history of compulsory education laws (CELs)

• CELs have been in effect in the US since 1918.• CELs, until last quarter of the 20th century, routinely

excluded students with disabilities.• Today, both federal and state special education and civil

rights laws legally oblige public education and a range of public agencies to identify and accommodate special needs of persons with disabilities.

• Federal laws effect the nation as a whole.• State laws vary from state to state.• Teachers of students with disabilities need to become

familiar with federal law and the laws applicable in their state.

• State laws may add to (i.e. supplement), but may NEVER diminish, federal rights accorded to persons who have disabilities.


Brown v. Board of Education

• Brown V. Board of Education, 1954 (civil rights). Race-based segregated schools were ruled a violation of the equal protection under the law provision in US Constitution.

• Disability activists noted parallel between race-based and disability-based segregation/discrimination.


Section 504 of the Rehabilitation Act of 1973

• Section 504 of Rehab. Act of 1973 (civil rights). Public agencies could no longer deny persons with disabilities access to programs/services (including accessibility purely on the basis of disability).

Learning activityExplore your campus and community. Look for ways agencies have retrofitted their environments to remove architectural barriers for persons with disabilities. Also, look for architectural barriers that remain in need of modification. Report your findings to your class


Education for All Handicapped Children Act

• Education for All Handicapped Children Act (PL 94-142), 1975 (special education).

• All children ages 3-21, with law-identified disabilities became eligible for a (1) free, (2) appropriate education, (3) in the least restrictive environment (LRE).

• Special education services became mandated nationwide for children with disabilities whose educational needs could not be met in regular education settings.


Explicit Inclusion of Physical Education

• PL 94-142, through its definition of special education, read in part: “Special education means specifically designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including…(ii) Instruction in physical education.”

• The law went on to define physical education as: The development of (A) physical and motor fitness; (B) Fundamental motor skills and patterns: and (C) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports).


Learning Activity

Recall physical education environments with which you were familiar. Were students with disabilities included? If yes; on an as-needed basis, what accommodations were made to ensure meaningful participation. If no, were students with disabilities taught in pull-out (i.e., segregated) settings? Given your experience, how would you rate the quality of adapted physical education experience for students in your school who had disabilities?


Education for All Handicapped Children Act (PL 99-457)• While PL 94-142 guaranteed special education services,

when necessary to all children ages 5-21 nationwide, provision of special education services for children ages 3-4 were not required nationwide.

• Under PL 94-142, state became obliged to educate 3-4 year olds with disabilities only if the state’s standing policy was to educate 3-4 year olds without disabilities.

• Passage of the Education for All Handicapped Children Amendments of 1986 (PL 99-457) mandated special education services, when necessary, nationwide for all children with disabilities ages 3-21 regardless of the state’s policy to educate 3-4 year olds without disability.

• Additionally, the federal government began to offer states attractive financial incentives to adopt early intervention programs for children with disabilities ages 0-2.


Americans with Disabilities Act (ADA)

• The ADA (also, civil rights law) extended accessibility protection to persons with disabilities to the likes of buildings, restrooms, drinking fountains, ramps, elevators, telephones, parking lots, parks, and swimming pools (including health spas).

• Existing construction was required to be retrofitted to become disability accessible. New construction was required to be disability accessible from the outset.

• Schools could no longer deny access to classes or activities solely on the basis of disability.

• Example: A wheelchair user, otherwise qualified, would now be entitled to participate in a bowling class/club. S/he would bowl from a sitting position or be provided a ramp, as needed, down which to roll the ball.

• Agencies that repeatedly infringe upon ADA guaranteed access to programs and activities risk withholding of both state and federal funds.


Defining Disability: Special Education Law

• Current federal special education law defines disability according to the condition that disables (i.e., autism, deafness-blindness, deafness, hearing impairment, emotional disturbance, intellectual deficiency, multiple disabilities, etc.).


Defining Disability: Civil Rights Law

• Current federal civil rights law defines disability, not by condition, but by whether a condition, irrespective of name/label, affects one or more major life functions.

• The ADA recognizes an individual with a disability as one who:• Has a physical or mental impairment that substantially

limits one or more life activities• Has a record of such impairment; or• Is regarded as having such an impairment.


Individuals with Disabilities Education Act (IDEA) (PL 101-476)• IDEA combined PL 94-142 (Education for All Handicapped

Children Act [1975] and PL 99-457 (Education for All Handicapped Children Act Amendments [1986] under one umbrella law).

• Passage of PL 101-476…1. Marked the beginning of removal of the word ‘handicap’ from federal language in favor of ‘disability.’ Why?

2. Provided that, at age 16, the student’s individualized education plan (IEP) would also include an individualized transition plan (ITP)• Purpose of the ITP is to better enable the student to make

the transition from life in school to life in the community.


IDEA Amendments of 1997 (PL 105-17)

• Revisions to antecedent law (PL 101-476) were prompted by:• Parent and school concerns about

underachievement among students with disabilities.

• Spiraling special education costs• Concerns by parents of children without

disabilities that special education funding was increasingly taking its toll on the regular education curriculum


IDEA Amendments of 1997 (PL 105-17)

PL 105-17 revisions were designed to: • Heighten expectations for children with disabilities.• Include children w/ disabilities in assessment results.• More fully enfranchise parents of children with disabilities in their

children’s education.• Remove financial incentives for segregating children with

disabilities.• Include regular education teachers more directly in child with

disabilities education.• Help prevent limited English students from being

disproportionately placed in special education. • Enhance school safety and discipline.• Better enable school personnel to react quickly to behaviors of

students who might become a danger to themselves or others.• Reduce potential for conflicts/misunderstandings between

parents and school.


PL 108-446, IDEIA or IDEA 2004

• Prominent changes in IDEA 2004 focus on three general areas:• IEP Process• Due Process• Discipline


IDEA 204: The IEP Process

• Grade level and alternate achievement standards required for students with disabilities.

• Short term instructional objectives no longer required on IEPs of most students with disabilities.

• Short term instructional objectives may, however, continue to be included.

• IEP progress reports (when compared to previous IDEA revisions) weakened in IDEA 2004

• Transition from school to community life (actual transition activity, not merely a plan, must begin by age 16)

• IEP meeting attendance and participation allows for more flexibility than previous IDEA revisions

• Pilot program permitted in certain states to experiment with multi-year IEPs

• Transfer between schools (helps ensure continuity of curriculum)


IDEA 2004: Due Process

• Statute of Limitations: Parents given two years from knowledge of alleged violation of due process rights to file complaint.

• Due process complaint notice. Parents must: (1) support complaint with facts, (2) propose a solution, (3) school must respond to complaint within law-specified period of time.

• Who pays attorneys fees: Parents may be reimbursed or may be liable. Parents may be liable if their claim is judged frivolous, unreasonable, or without foundation.


IDEA 2004: Discipline

• Stay put: With passage of IDEA 2004, students with disabilities whose violations of school rules justify more than a 10 day suspension no longer have the right to remain in school pending an appeal.• School may now immediately remove students for 45

days who inflict or are at risk for inflicting “serious bodily injury’ to themselves or others.

• Serious bodily injury includes death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a body part, organ, or mental faculty


Discipline (cont.)

• Alternative educational settings: Student remains fully entitled, irrespective of how restrictive the setting, to a free, appropriate education pursuant to IDEA rules.

• Manifestation determination review: This review process determines cause of student’s problematic behavior. School may not discipline/punish student if student’s problematic behavior is deemed to be disability related. • According to the law, to punish a student because the

student has a disability would be a violation of the student’s civil rights.

• 45 calendar day limit on removal from current educational settings for qualifying offenses ha been changed from 45 calendar days to 45 school days.


When Physical Education Is NOT Required for Students With Disabilities

• Prior to IDEA 2004, physical education was required for all students with disabilities whenever the child was determined to have a need for physical education.

• However, the right to receive physical education was abridged in IDEA 2004 as follows:

“Physical education services, specially designed if necessary, must be made available to every child with a disability receiving a free appropriate public education (FAPE), unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grade.”

(34 CFR 300.39, Ch. III, 1 July 2007)


No Child Left Behind (2001): Implications for IDEA 2004• IDEA’s focus is on the individual learner and development, as

needed, of an IEP designed specifically to meet the learner’s unique educational needs.

• NCLB was enacted, in part, to… “insure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging academic achievement standards and state academic assessments.” (PL 107-110, Section 1001)

• US Department of Education expects alignment between IDEA 2004 and NCLB.

• Critics suggest the laws are fundamentally in conflict with one another (e.g. Ratcliffe and Willard, 2006).

• Critics of the requirement for alignment suggest that NCLB is too much about ‘one size fits all’ education; includes too many students with disabilities.

• On the contrary, critics say: IDEA is about individualizing instruction (via the IEP/ITP) for students with disabilities, according to each student’s unique educational needs.

copyright © 2011 pearson education inc. lectures by ? chapter 2 legal mandates michael horvat

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