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| The American Legal System |
You are about start your journey towards understanding special education laws and how they affect your child and/or student.
It makes sense, then, to start with the concept of “the law” itself.
What is a law? Where does a law come from?
Let’s start with a brief review of the American legal system and the sources of law…
Federalism
To understand how our government and our legal system works, we must look to the United States Constitution. This amazingly thorough
and resilient document contains the original description of the current configuration of our government.
Our government is called a “federalist” system. Federalism refers to the way in which our fifty separate states function as a unified entity
under a single, central federal government. There is a distinction between “federal powers” and “state powers.”
The federal government has many powers that are separated among the three branches – legislative (Congress), executive (President), and
judicial (the courts). Article I Sec. 8 of U.S. Constitution lists the specific powers belonging to the federal government.
The state governments retain power over all areas not mentioned in Article I Sec. 8. The 10th Amendment to the Constitution states that the
undelegated powers are “reserved to the states….”
Laws – What Are They?
A “law” is defined as “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” It is “that
which must be obeyed and followed by citizens subject to sanctions or legal consequences...” (Black’s Law Dictionary)
Laws are also called statutes or legislation.
Laws are written and enacted by state and federal legislatures. “Legislature” is another word for Congress.
Courts have the authority to interpret the laws that Congress enacts. The interplay between the legislature and the courts yields what we
know as special education law.
Laws – Where Do They Come From?
Laws (whether federal or state) come from four types of sources: constitutional, statutory, regulatory and case law. Each one of these
sources affects our children’s and students' education. We will briefly address each one.
Constitutional law is derived from constitutions – either federal or state. The U.S. Constitution is the fundamental source of American law.
Each state has its own constitution, as well. While a state may not deprive a citizen of a right granted in the U.S. Constitution, it may grant
additional rights.
Statutory law is created by state and federal legislatures. The U.S. Constitution grants Congress the authority to make laws. The process
through which Congress enacts a law is long and complicated!
IDEA is a federal statute. Federal statutes are published in the United States Code. IDEA is in title 20 of the United States Code, starting at
Section 1400.
A member of U.S. Congress (Senate or House) introduces a bill, which is passed to the appropriate committee. If the House and Senate
pass the same bill, the bill goes to the president, who may either veto it or sign it into law. If the House and Senate pass different versions of
the bill, a “conference committee” is selected to write a compromise bill. That new form is then voted on, and sent to the president for a veto
or signature. If the President vetoes the bill, the House and Senate can override the veto with a two-thirds vote in each house.
The final result is a law. Public laws are assigned a number and a name. (i.e. P.L 94-142 was the 142nd law passed by the 94th Congress
and it is called the Individuals with Disabilities Education Act [IDEA]).
To get an amusing and memorable "refresher" on "how a bill becomes a law", view School House Rock's video, "I'm Just A Bill" by clicking
here.
State constitutions create the format of state governments. Each state must create special education laws and rules that are consistent with
federal statutes and regulations. State legislatures may enact laws that grant more rights than the federal laws, but may not grant fewer rights.
Regulatory law is created by regulatory agencies. These laws are also referred to as administrative rules. When Congress passes a law, the
law lacks the detail to address every possible scenario that may occur. So, Congress delegates rule-making power to administrative agencies
that write regulations to “fill in the blanks” left by Congress. These regulations explain the law and have the same affect as the law.
Therefore, failure to comply with a regulation is as serious as violating a law.
The relevant regulatory agencies for special education issues are as follows: Office of Special Education and Rehabilitative Services
(OSERS); Office of Special Education Programs (OSEP); and Office of Civil Rights of the Department of Education (for Section 504 claims).
Case law is law created by courts when judges interpret another source of law. In the world of special education law, case law is the
decision a judge renders when a parent sues a school, or vice versa.
Why Are There Laws About Education?
The Constitution does not include any requirements regarding education. Consequently, education is governed by the states.
But, the federal government is certainly involved in American education through the use of “categorical grants.” “Categorical grants” give
federal financial assistance to states for educational purposes. The states must use the money as the federal government directs. In other
words, if a state chooses to accept federal dollars for education purposes, the state must use the dollars in accordance with federal
guidelines. In this manner, the federal government is able to influence educational policies.
It makes sense, then, to start with the concept of “the law” itself.
What is a law? Where does a law come from?
Let’s start with a brief review of the American legal system and the sources of law…
Federalism
To understand how our government and our legal system works, we must look to the United States Constitution. This amazingly thorough
and resilient document contains the original description of the current configuration of our government.
Our government is called a “federalist” system. Federalism refers to the way in which our fifty separate states function as a unified entity
under a single, central federal government. There is a distinction between “federal powers” and “state powers.”
The federal government has many powers that are separated among the three branches – legislative (Congress), executive (President), and
judicial (the courts). Article I Sec. 8 of U.S. Constitution lists the specific powers belonging to the federal government.
The state governments retain power over all areas not mentioned in Article I Sec. 8. The 10th Amendment to the Constitution states that the
undelegated powers are “reserved to the states….”
Laws – What Are They?
A “law” is defined as “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” It is “that
which must be obeyed and followed by citizens subject to sanctions or legal consequences...” (Black’s Law Dictionary)
Laws are also called statutes or legislation.
Laws are written and enacted by state and federal legislatures. “Legislature” is another word for Congress.
Courts have the authority to interpret the laws that Congress enacts. The interplay between the legislature and the courts yields what we
know as special education law.
Laws – Where Do They Come From?
Laws (whether federal or state) come from four types of sources: constitutional, statutory, regulatory and case law. Each one of these
sources affects our children’s and students' education. We will briefly address each one.
Constitutional law is derived from constitutions – either federal or state. The U.S. Constitution is the fundamental source of American law.
Each state has its own constitution, as well. While a state may not deprive a citizen of a right granted in the U.S. Constitution, it may grant
additional rights.
Statutory law is created by state and federal legislatures. The U.S. Constitution grants Congress the authority to make laws. The process
through which Congress enacts a law is long and complicated!
IDEA is a federal statute. Federal statutes are published in the United States Code. IDEA is in title 20 of the United States Code, starting at
Section 1400.
A member of U.S. Congress (Senate or House) introduces a bill, which is passed to the appropriate committee. If the House and Senate
pass the same bill, the bill goes to the president, who may either veto it or sign it into law. If the House and Senate pass different versions of
the bill, a “conference committee” is selected to write a compromise bill. That new form is then voted on, and sent to the president for a veto
or signature. If the President vetoes the bill, the House and Senate can override the veto with a two-thirds vote in each house.
The final result is a law. Public laws are assigned a number and a name. (i.e. P.L 94-142 was the 142nd law passed by the 94th Congress
and it is called the Individuals with Disabilities Education Act [IDEA]).
To get an amusing and memorable "refresher" on "how a bill becomes a law", view School House Rock's video, "I'm Just A Bill" by clicking
here.
State constitutions create the format of state governments. Each state must create special education laws and rules that are consistent with
federal statutes and regulations. State legislatures may enact laws that grant more rights than the federal laws, but may not grant fewer rights.
Regulatory law is created by regulatory agencies. These laws are also referred to as administrative rules. When Congress passes a law, the
law lacks the detail to address every possible scenario that may occur. So, Congress delegates rule-making power to administrative agencies
that write regulations to “fill in the blanks” left by Congress. These regulations explain the law and have the same affect as the law.
Therefore, failure to comply with a regulation is as serious as violating a law.
The relevant regulatory agencies for special education issues are as follows: Office of Special Education and Rehabilitative Services
(OSERS); Office of Special Education Programs (OSEP); and Office of Civil Rights of the Department of Education (for Section 504 claims).
Case law is law created by courts when judges interpret another source of law. In the world of special education law, case law is the
decision a judge renders when a parent sues a school, or vice versa.
Why Are There Laws About Education?
The Constitution does not include any requirements regarding education. Consequently, education is governed by the states.
But, the federal government is certainly involved in American education through the use of “categorical grants.” “Categorical grants” give
federal financial assistance to states for educational purposes. The states must use the money as the federal government directs. In other
words, if a state chooses to accept federal dollars for education purposes, the state must use the dollars in accordance with federal
guidelines. In this manner, the federal government is able to influence educational policies.
Access IDEA through the Library of Congress.
Access the United States Constitution.
Review relevant case law.
Access federal special education regulations.
Learn about the American Legal System.
Access the United States Constitution.
Review relevant case law.
Access federal special education regulations.
Learn about the American Legal System.
Articles and Links on the American Legal System
Outline of the U.S. Legal System, U.S. Department of State
Outline of the U.S. Legal System, U.S. Department of State
