Adolescent Learning and School Law

Adolescent Learning and School Law

Adolescent Learning and School Law

By Dr. Michelle Benson, Ed.D., FPA-BM Special Advisor

Introduction

Before potential educators become public servants in their school districts, they muster through classes that cover disciplines from adolescent learning to school law. They learn in their studies that without hesitation, teachers to be are held responsible for their knowledge and upkeep of the amendments while in the light of the public window. After all, it is only proper for a teacher to instruct using clear and simple directions within school law, and rules that even the most culturally diverse can understand. Schools are safe places for children and adults to learn.

This provides parents with reasonable assurance that their children are safe and under the supervision of professional, responsible adults. This culmination of everything I have learned in this course will relate and further research what is being done in the constant management of the population of exceptional children in special education and the no child left behind law.

Teaching in the field of Special Education

For all potential educators who choose to pursue a credential in special education, the Public Law 94-142 – Education of All Handicapped Children Act is a part of history that needs to be taken seriously and followed the same. Passed in 1975, Public Law 94-142 guarantee’s each school age and preschool child to the right of a free and appropriate education in a least restrictive environment. Public schools must provide education for all students with exceptionalities between the ages of 3 and 21 years. Since the inception of PL 94-142, the law has been modified and refined; today the law has been enhanced and replaced by the Individuals with Disabilities in Education Act (IDEA) of 2004.

History of Public Law 94-142

Back in 1975 when Public Law 94-142 became an act, there were more than eight million handicapped children in the United States whose educational services were just beginning to be met.  More than half of the handicapped children in the United States did not receive appropriate educational services which would enable them to have full equality of opportunity.

One million of the handicapped children in the United States were excluded entirely from the public school system and did not go through the educational process with their peers. “The state’s commitment to educating all children can be framed as a matter of  human capital development, or the economic benefits accrued to individuals and society as a result of educational attainment; it can be framed as a matter of capabilities, or the development of functioning’s that enable human flourishing; and it can be framed as a matter of rights.” Ben-Porath (2012).

In 2010, the United States Department of Education began to offer four purposes of the law that articulated a compelling national mission to improve access to education for children with disabilities. The four purposes were quoted by the Office of Special Education and Rehabilitative Services (OSERS) to: (1) assure that all children with disabilities have available to them, a free appropriate public education which emphasizes special education and related services designed to meet their unique needs (2) to assure that the rights of children with disabilities and their parents are protected. (3)to assist States and localities to provide for the education of all children with disabilities, and (4) to assess and assure the effectiveness of efforts to educate all children with disabilities.

Individuals with Disabilities Act

According to the United States Department of Education, the Individuals with Disabilities Education Act (IDEA) is a law ensuring services to children with disabilities throughout the nation. IDEA governs how states and public agencies provide early intervention, special education and related services to more than 6.5 million eligible infants, toddlers, children and youth with disabilities. Infants and toddlers with disabilities (birth-2) and their families receive early intervention services under IDEA Part C. Children and youth (ages 3-21) receive special education and related services under IDEA Part B. (www.ed.gov)

According to the 22nd Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act (U.S. Department of Education, 2000), in the 1998/1999 school year, 11% of the school-age population received special education services. That translates to more than 5 million students ages 6 to 17, a 34.5% increase since 1987/1988. The increase in enrollment of the entire school-age population during the same time period, however, was only 17%. In 1988/ 1989, 30% of the students receiving special education services were in a special education setting for approximately one fifth or less of their school day. Weiss & John (2002).

Eligibility under IDEA includes: the IEP, bus service, Special Day Classes and wheelchair ramps for schools. According to Crowley, (2013) Modifications designed to fulfill the act’s goal of equal access, such as wheelchair ramps, have become common since the act was signed into law. The Individuals with Disabilities Act is also tightly aligned with The No Child Left Behind Act that offers schools and their states financial incentives for improvement to their special education services.

The No Child Left Behind Act of 2001

The NCLB Act of 2001 was intended to ensure that all children receive high-quality education and thereby “close the achievement gap between high- and low-performing children, especially the achievement gaps between minority and non-minority students, and between disadvantaged children and their more advantaged peers” (Public Law No. 107-110, § 6301 (3), 2002).

This act was not only to demonstrate accountability of teachers and their districts, but also for an improved scoring capability in math and english. Accountability is the focus of the current NCLB policy, which addresses the academic achievement of America’s youth and especially the difference in test scores that exists between low-income and minority students and their middle-class counterparts. Rowley & Wright (2011). This seems to be a hot topic in today’s research about the NCLB Act.

However, if a teacher perceives a student to be inefficient in the dominant culture due to atypical behaviors or codes of speech, or to be of average or lower intelligence, there is a higher possibility of academic failure. A teacher’s or administrator’s expectations become directly related to a student’s educational expectations. Also, a teacher’s ability to address cultural diversity in the classroom in relation to the teacher’s social location has an impact on a student’s academic success, which highly reflects how students react to peer pressure.

IEP- Individualized Education Program

To provide for the needs of students with exceptionalities, an Individualized Educational Plan (IEP) must be developed for the child by the Individualized Education Program (IEP) Team, which sets the parameters of educational services, modifications and accommodations to be provided for the child with exceptionalities. The IEP is a legally binding document and is an education road map which the district must adhere to in educating the child.        

According to the National Center for Learning Disabilities, each public school child who receives special education and related services under The No Child Left Behind Act and The Individuals with Disabilities Act, must have an Individualized Education Program (IEP). Each IEP must be designed for one student and must be a truly individualized document. The IEP creates an opportunity for teachers, parents, school administrators, related services personnel and students (when appropriate) to work together to improve educational results for children with disabilities.

The IEP is the cornerstone of a quality education for each child with a disability. To create an effective IEP, parents, teachers, other school staff and often the student must come together to look closely at the student’s unique needs. These individuals pool knowledge, experience and commitment to design an educational program that will help the student be involved in, and progress in, the general curriculum.

The IEP as a Lawful Document

By law, the IEP as a document must include certain information about the child and the educational program designed to meet his or her unique needs. This information covers topics such as current performance, annual goals, special education and related services, accommodations, participation in state and district-wide tests, needed transition services and measured progress.

Special education and IEP law were generally developed first at the federal level and then at the state level. If there is ever a conflict between state and federal law, federal law must be followed. The basis for most IEP law is found in three federal statutes, The Individual with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Family Educational and Privacy Rights Act.  

IEP as an Insurance Policy

A major concern states that since the content of the IEP is legally binding, teachers should be able to describe how you would ensure what is included in the IEP to ensure the student needs are being met? As a parent of a child who has had an IEP since Kindergarten, I consider myself a professional about the vitality of this question. On the first page of an IEP packet are dates that stand for when the initial IEP was done, the project date of placement, next review of the IEP and when the triennial meeting would be set.

 Moving down the front page of the official IEP document, are some more dates that ensure that the child will receive services associated with his/her individualized education program. For my son, services are listed as speech and language and adapted PE with starting and ending dates, frequency of classes per week and for how many minutes per class session.

On the second page is sufficient room for the student’s present levels of performance including strengths and weaknesses per date, communication, motor skills, social and emotional development per date, and at the bottom, a place to address how the student’s disability affects the involvement and progress in learning general curriculum.

Moving on through the packet comes a chance for the IEP team to assess goals and benchmarks. What is great about this page, is it gives the parents the actual dates that the goals and benchmarks are to be accomplished by. As a parent in this IEP group, I found this to be very comforting and professional for my growing son’s constant improvement.

What is the plan?

Another question of vital importance discusses that school district (s) may have limited funding and the modifications or accommodations included in an IEP are beyond the districts per pupil expenditure and the district administration may not support such spending and opposes what is included in the plan. The first thing I would look into is if the school is within compliance with IDEA and The No Child Left Behind Act. If so, there is no amount of money that this school would not receive for making services for children with disabilities suppler.

The National Council on Disability (NCD) offers an answer to this question. NCD joins the voices of concern from individuals with disabilities, their families, and their advocates across the country about inadequate funding for special education. NCD recommends Congress adopt mandatory funding in keeping with the original commitment from the Federal Government to fund 40 percent of the per pupil cost of special education. In this regard, NCD also recommends Congress tie full funding of IDEA to full enforcement of IDEA, specifically, the implementation of the recommendations listed above. (www.ncd.gov)

Parental Involvement in an IEP

Knowing the importance of an IEP and student rights, a special education teacher and school principal would surely know how a member of the IEP team could advocate for the rights of the student (s), legal resources that a parent or parents can take against a district of the IEP is not being followed, and if the services provided are not meeting the needs for the child with exceptionalities. As a parent of a special needs child, who is now an adult, my son and I try to stay involved with the community and volunteer at schools, advocate for the needs of children to be met and just be people that they can talk to or relate to.

From experience, if a parent is not happy with the needs of their child being met, then it is in the rights of the parent to call for a meeting of the IEP team- consisting of the special education teacher, a general education teacher, a school district representative, speech pathologist and the school psychologist and discuss needs and concerns.

The parent (s) must keep in mind that the scheduling of this team may take weeks, so professional courtesy must be allowed.  This type of recourse should be discussed at the first meeting and always should be an option. The best way to avoid potential lawsuits is to keep communication open 100%. This especially goes for the IEP process and everything within the document.

The Best Way to Prevent Lawsuits

The best way to prevent potential lawsuits is to remember that teachers are responsible for their own tortious actions with no protection from the school. Make it your effort to know school law. This especially applies to the teaching of special education because there are so many laws that protect the students, but hardly any that protect the educator. Intentional Torts- A deliberate act, such as: assault, battery, libel, slander, defamation, false arrest, malicious prosecution, and invasion-all requiring proof of intent or willfulness. The same seriousness counts when rights to speech are violated. Unintentional Tort- Simple negligence is validated by standard of care, breach of duty, injury and proximity of legal cause. Unfortunately, unintentional torts are seen the most in special education according to McCarthy & McCabe, (2010).

The following cases are instructive in that they illustrate when school officials and personnel may be held liable for student injury and misconduct: According to the Center for Effective Collaboration and Practice, the following three case scenarios show how important it is for educators and district officials to know about “tort law.”

The first case example: Ferraro v. Board of Education of the City of New York (1961) indicated that courts will hold school personnel liable if a student attacks and injures another student and the teacher should have known that such an attack or aggressive behavior was possible and, therefore, could have prevented the injury.

The second case example: Cohen v. School District (1992), a special education student with learning disabilities, behavior problems, and known violent tendencies was mainstreamed without adequate supervision. Without provocation, the student attacked and injured a peer in his classroom. The parents of the injured student sued the school maintaining that the injured student’s rights had been violated. The court stated such a placement, however, may result in school officials being held liable if the officials knew that a student with disabilities was violent, and they placed the student in the general education classroom without adequate supervision.

The third case example: McMahan v. Crutchfield (1997), a school district paid to settle a lawsuit involving a special education student who assaulted a five-year-old girl. Allan Crutchfield, who had mild to moderate mental disabilities and had a history of behavioral problems, was participating in a job-training program when the assault occurred. He had a history of assaultive behavior, and a mental health evaluation had stressed that he be under constant supervision. His job-training program involved work in a college cafeteria. One morning a college student brought her five-year-old daughter into the cafeteria.

When the girl went to the bathroom, Crutchfield, who was unsupervised, followed her in, forced her head into a toilet, and began to strangle her. A college student hearing screaming ran into the bathroom and chased Crutchfield away. The young girl was unconscious and injured, but she eventually recovered. Crutchfield was later found incompetent to stand trial and committed to a state psychiatric hospital. The girl’s mother sued the school district. Rather than going to court, school officials admitted their liability and paid the girl’s mother $400,000. (www.cecp.air.org)

One of the most important obligations for an educator is to provide a strong standard of care. As advice to any school district, please provide mandatory training to all educators that will ensure the proper ways of supervision and educational management as per the law. These policies should be in writing and available to all educators and employees working in the field of education. Above all, school district officials should understand tort laws in their states.

The Importance of the First Amendment

Not only do school districts have a policy that clearly prohibits the uploading of intellectual property and copyrighted material, but also a policy that states that we as educators must teach students early to avoid academic plagiarism by properly citing sources. This especially applies to the teaching of children with exceptionalities.

Technological learning tools are in our K-12 schools and with this comes a mandatory block on certain websites that have nothing to do with learning. Lacking an understanding of the complexity of teacher responsibilities in dealing with First Amendment issues can lead to lawsuits which can damage teachers’ careers, cost school districts millions of dollars in legal fees, and have profound effects on the education of students. (Call & O’Brien, 2011)

The courts decision under Garcetti vs. Ceballos to strip employees of their first amendment rights for speech made “as employees” pursuant to their official job duties should be construed narrowly so that it applies only when teachers communicate with their students in school related purposes. With regards to religious expression, the first amendment has two clauses that must be followed to avoid potential violation of privacy.

Firstly, the establishment clause prohibits states from passing laws that aid in religious preferences over another. Flowers (2013) articulates that the establishment clause argues that the purpose is not to protect religion but to protect religious freedom. This is vital to understand, as many students from different countries are populating our public schools.

According to Essex, (2012), religious garb raises the issue as to whether such dress creates a sectarian influence in the classroom. The answer to this is that it only applies to teachers that may choose to wear their “garbs” at school. Teachers must really stay conservative in their personal beliefs and lifestyles.  The second clause of the first amendment is the free exercise clause. This prohibits state from interfering with individuals religious freedoms. As this does apply to free speech and writing, teachers have to really step it up and explain the importance of protecting the rights of privacy within the community.

 Upon combining the two clauses of the first amendment, public schools are now required as agencies to maintain a neutral position during matters of their daily operations. Any violations of religious freedoms under the first amendment will affect state and its agencies, thus causing a stir that could lead in to an involvement by the Supreme Court.

As implied by Tygesson, (2013), Teaching is dynamic, and teachers are expected to engage young people with stimulating ideas and instruction. As they grow older, students frequently inquire about important, and at times controversial, topics related to religion and politics. “If our goal in education is understanding the justification for, and legitimate contours of public reason, then may the best be met by exposure to social differences, and this includes exposure to different religions beliefs and practices.” Warnick (2012).

Consequently, core knowledge in free speech, academic freedom, and the right to hear will always keep the best teachers in check. This is the pinnacle of freedom in protecting cultural heritage and religious beliefs.

The Importance of the Fourteenth Amendment       

According to Essex (2012), under the fourteenth amendment, procedural due process refers to the process of informing charged individuals about what they are accused of and giving them the opportunity to defend themselves before an impartial decision maker, which in this case was is the parent. According to the recollections of Hunter, Shannon & McCarthy (2013), In the case of Cleveland Board of Education v. Loudermill (1984), the United States Supreme Court stated: “Under the Due Process Clause, an individual must be given an opportunity for a hearing before he is deprived of any significant property interest.”

Broken down further, this case exercised due process by ways of allowing the defendant to defend himself and his feelings towards best interest. In the case; Loudermill argued that the board removed his property without giving him a chance to defend himself in violation of his right to Due Process under the Fourteenth Amendment. The courts then ruled that the board did not violate his due process rights because it followed the procedures specified by the same statute for removing the property right.

White (2012), presumably implied that the Bill of Rights and the Fourteenth Amendment were adopted with the intention of imposing an outer limit on what kinds of actions legislatures may take against individuals. In comparison and from a non-originalist perspective, Colby (2013) offers that the fourteenth amendment’s dubious origins have little bearing on its modern authority.

Due Process

As every child and their parents are given due process consideration; especially in special education, acknowledgment of a disability is vital to the success of the student’s academia. According to Doyle (2013), over the past decade in particular, the term “intellectual disability” has become the preferred phrase when describing those who previously were diagnosed as having mental retardation. Especially children who have intellectual disabilities, they need to feel and be among the general population so they can live and operate among them as they get older without confusion.

Mainstreaming in K-12 education can be dually beneficial for both students with autism and general education students. It is important for other children to interact with people with disabilities in order to gain deeper understanding of how a disability affects their lives and to foster feelings of empathy and the belief that people with disabilities are not “abnormal.” An additional benefit is that it is likely that the general education students will feel significantly more comfortable in dealing with individuals with autism, or any disability for that matter, later in life. Higbee, Katz & Schultz (2010).

In Summary

Currently in the United States of America, nearly a decade into an era of intensified, system-wide accountability pressures under the No Child Left Behind law that include what educators should be doing and what they should be producing in students, there is still pressure to achieve higher scores. At the same time, the government is willing to fund schools that want to improve their programs that will meet the needs of the exceptional students.  

As in my profession as a professor, students in higher education are graded according to a rubric. In the future, I can see the public school systems being set up in grading and accountability requirements for the needs of the special students as it is in higher education. It is an important time to consider the interaction of external and internal accountability systems in schools. Knapp & Feldman (2012).

Accountability is present in the introduction of the common core curriculum, which includes the special needs students, in almost all 50 states that holds all students from grades K-12 to achieving standards in high comprehension. Teachers really need to have something similar to grow by and to assess by for the administrators. This will lead to a more organized way to address a whole schools accountability standards and national scores and insure funding for the management of school wide improvements.

References

Ben-Porath, S. (2012). DEFENDING RIGHTS IN (SPECIAL) EDUCATION. Educational Theory, 62(1), 25-39. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/918794542?accountid=28180

Crowley, T. (2013). Wheelchair ramps in cyberspace: Bringing the Americans’ with disabilities act into the 21st century. Brigham Young University Law Review, 2013(3), 651-690. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/1506884684?accountid=28180

Individual Education Program (IEP) Special Education. Retrieved on April 15, 2014 from: www.doe.mass.edu/sped/iep/

Special Education and the Individuals with Disabilities Education Act http://www.nea.org/tools/15650.htm  

The California Department of Education. Retrieved on April 15, 2014 from: www.cde.ca.gov/

The National Council on Disability. Retrieved on April 15, 2014 from: www.ncd.gov

The United States Department of Education. Retrieved on April 15, 2014 from: www.ed.gov

Call, I., & O’Brien, J. (2011). Secondary preserve teachers’ knowledge of the first amendment. Teacher Education Quarterly, 38(4), 115-133. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/923754418?accountid=28180

Essex, N. E. (2012).  School Law and the Public Schools: A Practical Guide for Educational 5th Edition   Pearson Education Inc.   ISBN-10: 0137072759

Flowers, R. B. (2013). The constitution of religious freedom: God, politics and the first amendment. Journal of Church and State, 55(2), 351-353. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/1356976098?accountid=28180

Griffith, T. B. (2011). The tension within the religion clause of the first amendment*. Brigham Young University Law Review, 2011(3), 597-604. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/901112088?accountid=28180

Higbee, J. L., Katz, R. E., & Schultz, J. L. (2010). Disability in higher education: Redefining mainstreaming. Journal of Diversity Management, 5(2), 7-16. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/506637577?accountid=28180

Knapp, M. S., & Feldman, S. B. (2012). Managing the intersection of internal and external accountability. Journal of Educational Administration, 50(5), 666-694. doi:http://dx.doi.org/10.1108/09578231211249862

Rowley, R. L., & Wright, D. W. (2011). No “white” child left behind: The academic achievement gap between black and white students. The Journal of Negro Education, 80(2), 93-107. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/909483874?accountid=28180

Tygesson, N. K. (2013). CRACKING OPEN THE CLASSROOM DOOR: DEVELOPING A FIRST AMENDMENT STANDARD FOR CURRICULAR SPEECH. Northwestern University Law Review, 107(4), 1917-1951. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/1499304705?accountid=28180

Warnick, B. R. (2012). STUDENT RIGHTS TO RELIGIOUS EXPRESSION AND THE SPECIAL CHARACTERISTICS OF SCHOOLS. Educational Theory, 62(1), 59-74. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/918794476?accountid=28180

Weiss, M. P., & John, W. L. (2002). Congruence between roles and actions of secondary special educators in co-taught and special education settings. The Journal of Special Education, 36(2), 58-68. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/194715526?accountid=28180


The FPA-BM has as Special Advisor Dr. Michelle C. Benson, Ed.D. Dr. Michelle is a consultant, university professor and advisor to many. Dr. Michelle graduated from Northcentral University with a Doctorate in Educational Leadership. She holds a Master in Organizational Leadership/Management from Ashford University. Dr. Michelle has taught for the Department of Health and Human Services and Department of Community Health for Bachelor and Master level learners. Dr. Michelle also can motivate and lead her students to career and life changing opportunities. She is a student-centered education professional and is passionate to see success in people she encounters. Dr. Michelle has authored five journal publications and is always seeking ways to add more research to existing topics in leadership, learning and management.