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Florida Bar Journal

Individuals With Disabilities Education Act: The Interrelationship to the ADA and Preventive Law


This article explores many of the substantive issues raised by the Individuals With Disabilities Education Act (IDEA),1 its relationship to the Americans With Disabilities Act of 1990 (ADA),2 and preventive law steps that can forestall problems when dealing with the legal issues arising from IDEA and its interrelationship with the ADA.

Some Fundamental Concepts of IDEA

The case that sets forth the substantive requirements of IDEA is Hendrick Hudson District of Board of Education v. Rowley, 458 U.S. 176 (1982). Until this case, the Supreme Court had never discussed IDEA and, thus, the Supreme Court took the opportunity to lay out how IDEA suits would be handled in the future.

First, central to IDEA is the term Individual Education Plan (IEP) but nobody knew what such a plan had to contain. In Rowley, the court said an IEP must contain:

a) a statement of the present levels of educational performance of the child; b) a statement of annual goals, including short-term instructional objectives;

* * *

c) a statement of the specific educational services to be provided to the child and the extent to which the child will be able to participate in regular educational programs; d) the projected date for initiation and anticipated duration of such services; and e) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.3

Second, IDEA requires that parents or guardians must be notified of any proposed change in the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child. Parents or guardians also must be permitted to bring a complaint about any matter relating to such evaluation and education.4 A change in placement will be discussed later.

Third, IDEA requires that parents be permitted to examine all relevant records, with respect to the identification, evaluation, and educational placement of the child and to obtain an independent educational evaluation of the child.5

Fourth, IDEA allows the parents, once they have exhausted administrative remedies, an initial due process hearing and an appeal to bring a court action to enforce their rights under IDEA.6

Fifth, the Court discussed that IDEA contains a very definite bias toward mainstreaming. Children in special education are to be educated with children without disabilities whenever possible.7 Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature of severity of the disability is such that education in regular classroom with the use of supplementary aids and services cannot be achieved satisfactorily.8

Before moving on to a discussion of a free appropriate education, the question of what is a change in placement and how the mainstreaming requirement can play out should be addressed. The U.S. Supreme Court answered this question in Honig v. Doe, 484 U.S. 304 (1988), regarding a suspension. In Honig, a person with a behavior disorder who was in special education got into a fight. When the principal was escorting the student to the principal’s office, the student kicked in a window. The student had a long history of behavior problems and the school administration summarily dismissed him from school. The student then brought suit. The court held that IDEA does not have a “dangerous” exception to the change in placement rules9 and, therefore, before suspending a student for more than 10 days, the schoool must follow the change in placement requirements set forth in IDEA.10 The Court believed that if it allowed a “dangerous” exception, which was not supported by the legislative history, schools would just expel disabled students as the easy way out of providing a free appropriate education to their students.11

The issue of a change in placement arises in other contexts as well. For example, the Southern District of New York was faced with the issue of whether graduation was a change in placement. This problem occurs quite frequently, as one of the strategies that school districts employ at times to stonewall the prospective plaintiff and, before the process can be completed, graduate the aggrieved party. When faced with this scenario, the Southern District of New York in Cronin v. Board of Education of East Ramapo School District, 689 F. Supp. 197 (7th Cir. 1994), said that graduation operated, as a practical matter, in much the same manner as a suspension of more than 10 days and, thus, a change in placement did occur.12

The discussion of whether a change in placement occurs is more than just of academic interest. When there is a change in placement and proceedings are initiated under IDEA, the stay put provisions of IDEA go into effect and, unless the state or local educational agency and the parents or guardian otherwise agree, the child must remain in the current educational placement.13

The bias toward mainstreaming can lead to interesting results. For example, what should a court do if a student’s psychological development would be better furthered in a segregated environment and yet the student is receiving educational benefits in an integrated environment? This was the situation in which the court found itself in Barwacz v. Michigan Dep’t of Education, 681 F. Supp. 427 (W.D. Mich. 1988). In the world of persons with hearing losses, there are the following: those with normal hearing; those with a hearing loss, regardless of severity, who function in the “hearing world”; and those who, with severe hearing losses, identify themselves culturally with the deaf culture. The student in Barwacz identified herself as culturally deaf and wanted to pursue her education in an environment that would affirm that choice.14 The court sympathized with Barwacz’s plight, especially since the federal government insisted on mainstreaming but also had created a school for the deaf. The court also said that the provisions of IDEA were quite clear that mainstreaming is to be the preferred option if the student was receiving a free appropriate education.15

Free Appropriate Public Education

Critical to substantive analysis of IDEA is the concept of “free appropriate public education.” IDEA guarantees a free appropriate education to qualified students.16 However, IDEA does not itself define what is “a free appropriate education”17 and, thus, the Supreme Court in Rowley was faced with setting out the principles for determining when a free appropriate education has been provided.

The Supreme Court said that under IDEA, a free appropriate education means special education and related services that: 1) have been provided at public expense, under public supervision and direction, and without charge; b) meet the standards of the state educational agency; c) include an appropriate preschool, elementary, or secondary school education in the state involved; and d) are provided in conformity with the IEP.18

To clarify, the Court said that a free appropriate education consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.19 In determining whether the special education student is receiving educational benefits, one factor to consider if the child is in regular classrooms is whether the child has an IEP that is reasonably calculated to achieve passing marks and advance from grade to grade.20

Court View of an IDEA Case

The Rowley case set forth the standards of review for IDEA cases. In Rowley, the Court stated that reviewing an IDEA case involved a two-step process. It must be determined: 1) whether the state has complied with the procedures set forth in IDEA,21 and 2) whether the IEP developed through IDEA is reasonably calculated to enable the child to receive educational benefits.22 Some states have gone beyond this minimum standard and have codified laws specifying that the public schools must provide special education programs and services that are designed to develop the maximum potential of each child with a disability.23

Another issue with which a court must deal in reviewing an IDEA case is the weight the reviewing court should give to the administrative record and findings. In Rowley, the Court said that the standard of review was “due weight.”24 However, “due weight” is a rather amorphous term so further guidance must be sought from decisions. In reviewing these, it is apparent that how much weight is given to the administrative proceedings depends on location in the country. In some circuits, due weight is equated with de novo, a fresh look,25 while the Seventh Circuit has adopted a middle ground (combining the concepts of a fresh look but with quite a bit of respect for the administrative record).26

How the ADA Relates to IDEA

The definition of disability under the ADA is far broader than the definitions under IDEA. Under IDEA, there are varying disabilities and they are all defined in the regulations. Those definitions are quite specific. Whereas, the ADA defines a disability as any of the following: 1) a physical or mental impairment that substantially limits one or more of life’s major activities; 2) a record of such an impairment; or 3) perception of one as having such an impairment.27 The first definition of disability contains many terms that have engendered much litigation ( e.g., “major life activity” and “substantially limit” to name just two), but a fuller discussion of that is beyond the scope of this article. Schools need to be concerned with all three definitions of a disability. However in the special education field, it can be expected that a record of impairment will arise quite frequently, as it is not unusual for exceptional children to have long records of disabilities as defined by the ADA. These disabilities may or may not be present at the time.

Just because a person has a disability as defined by the ADA does not mean that the person is protected by the ADA. The person must be otherwise qualified. “Otherwise qualified” is a term of art and, with respect to governmental entities in a nonemployment context, means that an individual with a disabling condition or disability can, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.28 Of course, this definition raises the question of what is a reasonable modification. The ADA addresses that issue in the negative. That is, a governmental entity must make reasonable modifications, unless to do so would constitute an undue hardship or a fundamental alteration in the program.29 If the modification would constitute an undue hardship, the head of the public entity must so certify and all things must be done to accommodate the person up to the point of undue hardship or fundamental alteration in the program.30 Undue hardship requires economic-based proof and, as a result, will be very difficult for a public entity to prove.31 Therefore, a public entity is better off arguing a fundamental alteration in the program.

A critical question with regard to accessibility in the context of governmental entities (which all public schools are) is what constitutes a program. The question is critical because, under Title II of the ADA—the title of the ADA that applies to governmental entities—each of a public entity’s facilities need not be accessible32 If the facility was constructed before January 26, 1992.33 Only the public entities programs must be accessible.34 Unfortunately, case law offers little guidance on this issue. Therefore, it is suggested that the public entity should use the self-evaluation process (the public entity was supposed to complete the self-evaluation by January 26, 1993) to determine what is a program.35 Further, the public entity can take some steps to determine what constitutes a “program.” The public entity should consider commonalities in the delivery of the particular service. and the common usage of the term “program.” It may be fairly obvious to people in the governmental entity what its particular program is. For example, referring to an “athletic program”36 is common. Finally, the determination of what constitutes a “program” should be made with the input of the governmental entity’s staff and its legal counsel.

Preventive Steps

There are numerous preventive steps that can be taken so that the school district or parent can effectively deal with the many legal issues arising from IDEA and the ADA.

1) Document, document, document.

2) Make sure that the IEP is individualized.37

3) Be flexible and do not compartmentalize a student into a disability category and refuse to provide services outside of it. The consequence of doing that could well be an ADA violation.38

4) The school district needs to know how its jurisdiction handles the issue of change in placement, particularly when the parents institute due process proceedings.39

5) Alternatives should always be available; otherwise, the court will have to choose between the alternatives presented.40

6) IDEA disabilities should be evaluated first. If the answer is no, evaluate for ADA disabilities. If the answer to the ADA evaluation is yes, reasonably accommodate.

7) Whether the problem is related to education of the child or something else should be evaluated. For example, the matter might involve program accessibility rather than an education matter per se.41 Thus, one may be dealing with the ADA, rather than with IDEA or §504.

8) Competent and knowledgeable people should be on the multi-disciplinary team.42

9) The special education teachers and the regular teachers should communicate with each other.
1 20 U.S.C. §§1400 et seq.
2 42 U.S.C. §§12101 et seq.
3 Id.
4 Id.
5 Id. at 182.
6 Id. at 183. If the parents are successful, they are entitled to attorneys’ fees. See Board of Education of Murphysboro v. Illinois Board of Education , 41 F.3d 1162, 1169 (7th Cir. 1994).
7 Rowley , 458 U.S. at 202.
8 Id. at 202-203 n.24.
9 Id. at 323.
10 Id. at 325.
11 Id. at 324.
12 Id. at 203.
13 Id. at 201, citing 20 U.S.C. §1415(e)(3).
14 Barwacz v. Michigan Dep’t of Education , 681 F. Supp. 427, 435-436 (W.D. Mich. 1988). It must be noted that being deaf is very much a cultural choice. A person can have a severe hearing loss and yet not identify himself or herself as culturally deaf. This is certainly true in my case. I have a hearing loss of 65-90 decibels, depending on the tone in each ear, wear top of the line hearing aids, lip read, function very much in the hearing world, and do not know sign language. Despite my hearing loss, which is considered severe to profound, I do not consider myself deaf nor, for that matter, would I ever be accepted in the deaf culture.
15 Id. at 436-437.
16 Rowley , 458 U.S. at 186.
17 Id.
18 Id. at 188.
19 Id. at 188-189.
20 Id. at 203.
21 Id. at 206.
22 Id. at 206-207.
23 Eg. , Barwacz v. Michigan Dep’t of Education , 681 F. Supp. 427, 433 (W.D. Mich. 1988).
24 Rowley , at 458 U.S. 206.
25 Johnson v. Lancaster-Lebanon Intermediate Unit 13 , 757 F. Supp. 606, 614 (E.D. Penn. 1991); see also infra notes 37-38.
26 Board of Education of Murphysboro v. Illinois Board of Education , 41 F.3d 1162, 1166-1167 (7th Cir. 1994).
27 42 U.S.C. §12102(2).
28 Id. at definition of Qualified Individual with a Disability.
29 See 28 C.F.R. §35.150(3).
30 Id.
31 Id. ; see also Helen L. v. DiDario , 46 F.3d 325 (3d Cir. 1995).
32 28 C.F.R. §35.150(a)(1).
33 28 C.F.R. §35.151(a).
34 28 C.F.R. §35.150(a).
35 See 28 C.F.R. §35.105.
36 See Hollenbeck v. Board of Education of Rochelle Township , 699 F. Supp. 658 (N.D. Ill. 1988). A fascinating case involving a mobility impaired student who wanted to participate in sports. Today the suit would have been brought under Title II of the ADA. Hollenbeck not only won his case, but today you can see him in Nike commercials, where he capitalizes on his being one of the premiere paralympic athletes in the world.
37 Johnson v. Lancaster-Lebanon Intermediate Unit 13 , 757 F. Supp. 606 (E.D. Penn. 1991).
38 Id.
39 Cronin v. Board of Education of East Ramapo Central School District , 689 F. Supp. 197 (S.D. N.Y. 1988).
40 See Board of Education of Murphysboro v. Illinois Board of Education , 41 F.3d 1162 (7th Cir. 1994).
41 See supra note 38.
42 Id.

William D. Goren is a sole practitioner in Springfield, Illinois, with a practice emphasizing health law and matters related to the ADA. He is also an expert witness in these areas. Mr. Goren graduated from Vassar College in 1982 with a B.A.. and received his J.D. from the University of San Diego in 1985 and LL.M. in health law from DePaul University in 1989.
This column is submitted on behalf of the General Practice Section, L. Michael Roffino, chair, and David A. Donet, editor.

© William D. Goren 1997