Effects of new special ed laws remain unclear
By LAURA DIAMOND
The Atlanta Journal-Constitution, December 12, 2004

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National laws governing the teaching of children with disabilities are changing, and educators expect these revisions to bring safer classrooms and fewer lawsuits.

But no one seems sure just yet how the changes will play out.

The reauthorized Individuals with Disabilities Education Act - signed into law by President Bush last week - aims to improve the way educators teach and treat students with disabilities. The new law clarifies the rules dealing with student discipline, lawsuits, teacher qualifications and other issues.

Gordon Riffel, director of special education for Gwinnett County Public Schools, said more specific changes should come next year, when federal education officials develop regulations interpreting the new law.

"I think it will make special education stronger for students and parents," Riffel said. "It certainly addressed some areas we were concerned about."

Gwinnett County, which has more than 135,000 students, is the state's largest school district. More than 15,000 Gwinnett students are enrolled in some kind of special education program. Statewide, there are about 191,000 special education students.

Kirk Englehardt, spokesman for the Georgia Department of Education, said the new special education law, combined with the No Child Left Behind Act, a federal school reform law mandating yearly testing of students and other requirements, places unprecedented focus on students with disabilities.

"With those two pieces of legislation as a backdrop, students with disabilities are full participants in the accountability and school reform efforts currently in Georgia," Englehardt wrote in an e-mail statement. "We have already begun to see promising outcomes and we are hopeful that students with disabilities in Georgia will continue to show positive growth."

Many parents were unaware the law was up for review. They were unsure how the changes will impact their children.

"There are always a lot of points of view," said Esperanza Gerardino, whose daughter, Gwendoline, is deaf and attends Gwinnett County public schools. "You just hope that the school people and the people who write these rules do what is best for your child."

Garry McGiboney, the deputy superintendent of DeKalb County public schools, attended a briefing on the bill last week in Washington.

"It does appear that schools will have a little bit more freedom to remove a disruptive student with disabilities from the classroom," McGiboney said.

A child with disabilities now may stay in the classroom after a fight or some other disruptive incident, unless a school official can make a case in an administrative hearing that the student must be removed for the sake of the student or others in the class. The amended law would ease the rules, giving a school official the power to remove the student, provided a discipline problem was not related to the child's disability.

The change will allow school officials to discipline a student in special education the same way they would any other student, Riffel said. A special education student removed from the classroom will still receive the educational and medical services guaranteed by federal law in another setting.

A parent could appeal the decision, but the amended law says the parent will have to prove that the child's disability caused the child to misbehave. They don't have to do that now.

Parents likely will be upset with the change, said Esther Sherberger, director of Parent to Parent of Georgia, which provides information and emotional support to parents who have children with disabilities.

"The bottom line is a lot of people working with special-needs children want special things in place to protect these children," Sherberger said. "I see schools trying to be responsive to danger and trying to be responsive to all students."

Sherberger questioned how a school official ever will know whether a child's disability caused misbehavior.

"I know everyone is trying, but so many of these problems vary from case to case that it is hard to write laws," Sherberger said. "It is all very complicated."

Riffel said school officials will consider the child's disability in light of the misbehavior. Children with Attention-Deficit/Hyperactivity Disorder, a neurobehavioral disorder, often act impulsively because they have difficulty thinking things through, Riffel said. In this situation the disability is more likely to play a role in any misbehavior, he said. But if a child with a reading disability gets into a fight, it will be hard to say the learning disability was a factor because it typically does not affect a child's behavior, he said.

Riffel said the new law addressed another key area of concern for Gwinnett County - lawsuits. Of the $109 million a year the district spends on special education, about $250,000 goes toward legal fees, Riffel said.

The new bill encourages school officials and parents to work with a mediator to resolve disputes before going to court. The bill allows school officials to recoup legal costs from parents or their lawyers if a judge deems the suit frivolous.

"I think this has really been equalized," Riffel said. "We spend a lot of time and money on legal issues. I'm looking forward to putting some of that money back in classrooms."

But Jonathan Zimring, an Atlanta attorney who handles special-education lawsuits, called the changes misguided. He said the new law imbalances the process because most parents can't afford to sue, while school districts can use public tax dollars for legal battles.

"This is a partisan response to limit parents' access to due [legal] process," said Zimring, who has been handling special-education lawsuits since the 1970s. "I think it is designed to permit school districts to intimidate or threaten parents."

SPECIAL EDUCATION LAW

The reauthorized Individuals with Disabilities Education Act addresses the services schools must provide to students with disabilities. Two of the greatest changes involve discipline and the complaint process for parents. Here are some other significant changes:

• Cost - In principle, the federal government will pay 40 percent of special education costs by 2011. When the law was enacted in 1975 it said the federal government could eventually provide 40 percent of the funds. The federal government now pays about 19 percent of the cost.

• Teachers - Special-education teachers meet the "highly qualified" criteria required for other teachers through the federal No Child Left Behind Act. In Georgia, that means a teacher has met all state certification requirements and is teaching in his or her area of certification. Special-education teachers who teach multiple subjects must become highly qualified in each one.

• Racial disparities - The federal government will investigate racial disparities in special-education enrollment. Several national studies show a disproportionate number of African-American children are placed in special-education classes.

• Paperwork - Parents and teachers will be able to make minor changes to a student's individualized education plan, which is required for all students in special-education programs, through letters or phone calls rather than a formal meeting. A pilot program will allow 15 states to develop plans to reduce paperwork in an attempt to give teachers more time to teach.


Source: Individuals with Disabilities Education Improvement Act and local school districts.

Related Websites:

Wrightslaw Law Library

IDEA 2004: Changes frim '97