On the Same Team
| On the Same Team |
Building collaborative special education relationships between home and school.
| Parents and Educators! Stay updated on new updates and interesting developments in the world of special education. Register to receive "The Backpack": It's quick, easy and free! Register now. |
| For Parents: Services & Consultations Learn more... |
| "Do the BLOG!" Join a world-wide, interactive community of special ed moms. Register now. |
| For Support Groups: Arrange a presentation for your organization. Learn more... |
| Book Nook Find a "good read." Click here. |
| Copyright © 2009, Maureen A. Lowry-Fritz. All rights reserved. Disclaimer: The information on this website does not constitute legal advice. It is solely for informational and educational purposes. It is not intended to be a legal recommendation, nor should it substitute for obtaining legal counsel from your own attorney. It may or may not represent the current law in your state or locality. |
| Products Visit our online store to view our collection of books, tutorials and ebooks. Click here. |
| For Educators: Presentations & Trainings Learn more... |
| Upcoming presentations: View a complete list of upcoming presentations. Click here. |
 | |  | |  | |  | |  | |  | |  | |  | |  | |  |
| | | | | | | | | | | | | | | | | | |
| Special Education Case Law For more special education case law, click here. |
| Federal IDEA Laws More on IDEA... |
| Information by State For information about your state, click here. |
Parents and educators alike must have a solid understanding of our legal system, and how it affects special education in American today.
You are about start your journey towards understanding special education laws and how they affect your child and/or student.
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 formula for the current configuration of our government.
The U.S. Constitution sets forth our governmental structure as 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.”
Article I Sec. 8 of the U.S. Constitution enumerates the specific powers belonging to the federal government. Recall the federal powers you
learned about back in your Government class: collect taxes, pay debt, borrow money, coin money, establish post offices, build roads, create
and maintain an army....the list goes on...
But what about the power to create public schools? The power to create public schools is NOT listed in the Constitution! People are
oftentimes surprised to learn that the U.S. Constitution does not mention education - not even once!
Did the Founders just forget about schools and education?
Absolutely not!
The Founders knew and understood the role that public education should play in our young country.
Tomas Jefferson was the first American statesman to publicly endorse and advocate for public education for the masses. In 1810, he said, "I
have indeed two great measures at heart, without which no republic can maintain itself in strength: 1. That of general education, to enable
every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the
children of each will be within reach of a central school in it."
Indeed, Jefferson and the other Founders understood the importance and value that public education would have in our lives.
However, they did not feel that public education belonged within the scope of the federal government. As such, they did not include In
Article I Sec. 8 "the power to create public schools."
Rather, they deemed public education as SO important, that it belonged within the domain of the sovereign states. So, by omitting education
from the list of federal powers in Article I Sec. 8, the Founders gave the individual states control over education within their borders. That
delegation of power is "formalized" in the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states respectively, or to the people."
So, the state governments were given the power to draft laws regarding education.
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.
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: Constitution, statutes, regulations and case law. Each one of these sources
affects our children’s and students' education. We will briefly address each one.
Constitutional Law
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
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.
Take some time to read over your own state's special education statute.
Regulatory Law
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). State agencies also promulgate regulatory law which applies within the state's jurisdiction.
Case Law
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.
You are about start your journey towards understanding special education laws and how they affect your child and/or student.
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 formula for the current configuration of our government.
The U.S. Constitution sets forth our governmental structure as 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.”
Article I Sec. 8 of the U.S. Constitution enumerates the specific powers belonging to the federal government. Recall the federal powers you
learned about back in your Government class: collect taxes, pay debt, borrow money, coin money, establish post offices, build roads, create
and maintain an army....the list goes on...
But what about the power to create public schools? The power to create public schools is NOT listed in the Constitution! People are
oftentimes surprised to learn that the U.S. Constitution does not mention education - not even once!
Did the Founders just forget about schools and education?
Absolutely not!
The Founders knew and understood the role that public education should play in our young country.
Tomas Jefferson was the first American statesman to publicly endorse and advocate for public education for the masses. In 1810, he said, "I
have indeed two great measures at heart, without which no republic can maintain itself in strength: 1. That of general education, to enable
every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the
children of each will be within reach of a central school in it."
Indeed, Jefferson and the other Founders understood the importance and value that public education would have in our lives.
However, they did not feel that public education belonged within the scope of the federal government. As such, they did not include In
Article I Sec. 8 "the power to create public schools."
Rather, they deemed public education as SO important, that it belonged within the domain of the sovereign states. So, by omitting education
from the list of federal powers in Article I Sec. 8, the Founders gave the individual states control over education within their borders. That
delegation of power is "formalized" in the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states respectively, or to the people."
So, the state governments were given the power to draft laws regarding education.
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 the Legislative Branch.
- Laws are enforced by the Executive Branch.
- Laws are interpreted by the Judicial Branch.
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: Constitution, statutes, regulations and case law. Each one of these sources
affects our children’s and students' education. We will briefly address each one.
Constitutional Law
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
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.
Take some time to read over your own state's special education statute.
Regulatory Law
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). State agencies also promulgate regulatory law which applies within the state's jurisdiction.
Case Law
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.
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
| American Legal System |
Read the Laws:
United States Constitution
IDEA
IDEA Regulations
State special education statutes
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973 Regulations
Forest Grove School District v. T.A., 557 U.S. ____ (2009)
Board of Education of City School District of City of New York
v. Tom F., 128 S.Ct. 1 (2007)
Winkelman v. Parma City School District, 127 S.Ct. 1994 (2007)
Arlington Central School District Board of Education v. Murphy,
126 S.Ct. 2455 (2006)
Schaffer v. Weast, 126 S.Ct. 528 (2005)
Florence Co. Sch Dist Four v. Shannon Carter, 510 U.S. 7,
(1993)
Honig v. Doe 484 U.S. 305 (1988)
Burlington School Committee of the Town of Burlington v.
Department of Education of Massachusetts 471 U. S. 359 (1985)
Irving Independent School District v. Amber Tatro 468 U.S. 883
(1984)
Board of Education of the Hendrick Hudson School District v.
Rowley, 458 U.S. 176 (1982)
Brown v. Board of Education, 347 U.S. 483 (1954)
United States Constitution
IDEA
IDEA Regulations
State special education statutes
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973 Regulations
Forest Grove School District v. T.A., 557 U.S. ____ (2009)
Board of Education of City School District of City of New York
v. Tom F., 128 S.Ct. 1 (2007)
Winkelman v. Parma City School District, 127 S.Ct. 1994 (2007)
Arlington Central School District Board of Education v. Murphy,
126 S.Ct. 2455 (2006)
Schaffer v. Weast, 126 S.Ct. 528 (2005)
Florence Co. Sch Dist Four v. Shannon Carter, 510 U.S. 7,
(1993)
Honig v. Doe 484 U.S. 305 (1988)
Burlington School Committee of the Town of Burlington v.
Department of Education of Massachusetts 471 U. S. 359 (1985)
Irving Independent School District v. Amber Tatro 468 U.S. 883
(1984)
Board of Education of the Hendrick Hudson School District v.
Rowley, 458 U.S. 176 (1982)
Brown v. Board of Education, 347 U.S. 483 (1954)
Understand the Laws:
United States Constitution
IDEA
Section 504 of the Rehabilitation Act of 1973
Special education case law
Learn about the American Legal System
United States Constitution
IDEA
Section 504 of the Rehabilitation Act of 1973
Special education case law
Learn about the American Legal System