Overview Of The Federal Mandate Of Special Education

The Education for All Handicapped Children Act (previously known as “EHA” and reauthorized and renamed in 1990 as the Individuals with Disabilities Education Act, or “IDEA”),[1] was passed in 1975 in response to a congressional determination that disabled children were not being properly educated and were, in most instances, excluded from the classroom.[2]  Congress concluded that the problem was the result not only of financial constraints at state and local levels but was also due to state and local laws which enabled school districts to exclude children without consultation with their parents.  Accordingly, a remedial statute which would merely assist with funding was deemed inadequate.  Instead, Congress enacted legislation which grants disabled students the substantive right to a free appropriate public education in participating states, and conditions federal financial assistance upon compliance with IDEA.[3]

In order to qualify for federal funds, state and local agencies are bound to federal guidelines delineating identification and placement of disabled children.  In addition, because IDEA incorporates state law pertaining to educational rights of disabled children, local schools must also comply with state standards.  Thus, even if a school district complies with federal law, it may still violate IDEA if it fails to satisfy more extensive state protections that may also be in place.[4]


IDEA adopts a “zero reject” principle which brings within its protective ambit a wide range of disabled children who require special education and related services.[5]  The cornerstone of IDEA is the provision that all disabled children are assured the “right to a free appropriate public education”[6] which is comprised of “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a [disabled] child, including classroom instruction, and instruction in hospitals and institutions” as well as “related services” (“transportation, and such developmental, corrective, and other supportive services… as may be required to assist a [disabled] child to benefit from special education”).  Although the “free appropriate education” provision only assures disabled children a limited level of services,[7] IDEA provides this guarantee unconditionally.  School districts which fail to comply, therefore, are not afforded significant leeway in asserting defenses based on a child’s lack of conventional academic ability or the high cost of necessary services.


The primary vehicle through which disabled children are assured a free appropriate public education is the “individualized education program.”[8]  The IEP is a written statement prepared as the result of consultation among a representative of the local educational agency, the teacher, and the parents, which must contain, at the minimum:

(A)  a statement of the present levels of educational performance of such child,

(B)  a statement of annual goals, including short-term instructional objectives,

(C)  a statement of the specific educational services to be provided to each child, and the extent to which each 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 an at least annual basis, whether instructional objectives are being achieved.  20 U.S.C. §1401(19).

The IEP must be reviewed not less than annually, and must be revised when appropriate.[9]


In addition to IDEA substantive provisions, parents are also afforded significant procedural protections.  They have the right to examine all relevant documents with respect to their child’s education.[10]  They must be notified of any proposed changes in the identification, evaluation, or educational placement of the child.[11]  Parents who have a complaint with their child’s IEP must be given the opportunity to present their complaint at an impartial due process hearing before a state or local educational agency as determined by state law.[12]  If parents still find themselves aggrieved, they may bring an action in the United States District Court or a state court.[13]   Eleventh amendment immunity, which prohibits federal courts from hearing cases where a citizen of one state sues another state, has been abrogated.


IDEA provides that “[d]uring the pendency of any proceedings… unless the State or local education agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child.”[14]  In Thomas v. Cincinnati Board of Education, 918 F.2d 618 (6th Cir. 1990), involving a severely retarded eleven year old confined to a wheelchair,[15] parents invoked the due process procedure, and the court at first addressed the “zero reject” principle of IDEA.  The court then said, as to the ‘current’ placement, that when school officials unilaterally try to change a child’s placement, the current placement is the previously implemented IEP.  Placement does not refer to an unimplemented IEP, and had Congress intended a prospective IEP to govern stay put, it could have employed the term “IEP” instead of “placement.”  It didn’t, so “placement” must be given its plain meaning:  it refers to the operative placement actually functioning at the time the dispute first arises.  If an IEP has been implemented, the current placement is the last IEP.  If an IEP has not been implemented, it is the last “operative” placement.  This is interesting language and has ramifications for advocates who find themselves in a position to utilize the stay-put provision to their advantage.


Another area of contention is the “maximization” argument used by school districts to bolster the position that they are not responsible for providing a higher level of services than have been proposed.  The Rowley case, a U.S. Supreme Court decision, is always used as authority.[16]  It is important to be careful when using the term “maximization” in the educational setting.  For example, the district court in Bales v. Clarke wrote as if the phrase “‘maximizing’ the plaintiff’s educational opportunities” were synonymous with the idealistic goal of “‘maximum educational progress’ through the ‘best’ education available, without regard to costs.”  523 F.Supp. at 1371.  However, these concepts are not synonymous.  The former describes making the best use of the educational program which has been determined to be appropriate for the child, including balancing the needs of the local school district with the resources available to meet those needs.  The latter describes a utopian ideal of providing unlimited services to every child, a goal which has been recognized as unreachable and inappropriate.  The former is mandated by the Act; the latter is not.


1  20 U.S.C. §1401 et seq.

2  See H.R.Rep. 332, 94th Cong., 1st Sess. 2 (1975), in which Congress succinctly articulated its perception of the problem:  A majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.'”

3  Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988).

See David D. v. Dartmouth School Committee, 755 F.2d 411, 419-20 (1st Cir. 1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986); Geis v. Board of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3d Cir. 1985).

5  20 U.S.C. §1401(1).

  20 U.S.C. §1412(1).

In Doe v. Smith, 879 F.2d 1340, 1341 (6th Cir. 1989), it was recognized that “while, in order to be ‘appropriate’, the educational benefits provided by the states must be more than de minimus, Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989), they needed not maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children.”  (Citing Board of Educ. v. Rowley, 458 U.S. 176, 204 n. 26, 102 S.Ct. 3034, 3049 n. 26, 73 L.Ed.2d 690 (1982)).   Rather, “[t]he standard is satisfied by providing personalized instruction with sufficient support services to permit the child to benefit educationally from the instruction.”  Smith, 879 F.2d at 1341 (citing Rowley, 458 U.S. at 203, 102 S.Ct. at 3049).

8  20 U.S.C. §1401(18).

9 20 U.S.C. §1414(a)(5).

10 20 U.S.C. §1415(b)(1)(A).

11  20 U.S.C. §1415(b)(1)(C).

12 20 U.S.C. §1415(b)(2).

13 20 U.S.c. §1415(e)(2).

14 20 U.S.C. §1415(e)(3).

15 Who was also severely brain damaged, had a cleft palate and other multiple handicaps, and she operated at a one month functional level and had no self-help skills, requiring constant monitoring and suctioning.

16 458 U.S. 176 (1982).