There have been a bunch of decisions by courts and hearing officers in the last year and a half concerning special education eligibility. If I hadn't already seriously overused the term, I might call it a "hot button issue." Like just about everything else in the ever-changing field of special education law, eligibility certainly is a confusing minefield.
Many people are surprised to learn that in order to be eligible for special education, you need more than a disability. You must also by reason of your disability, need special education and related services. The IDEA defines “child with a disability,” i.e., one who is eligible for special education, as a child:
"(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities;
and (ii)who by reason thereof, needs special education and related services."
IDEA, Section 602(3)
If you have a disability but don't need special education, you might still have legal protection. For example, Section 504 and the ADA both cover a lot more kids, but IDEA is the special ed statute, and its definitions govern eligibility. If you are already confused, please raise your hand.
My friend Mark Weber, who teaches special education law and other good stuff at DePaul University College of Law, recently shared some of thoughts as to how the law is out of whack on this very important issue. His law review article on this topic, to my knowledge, is the first to quote this blog in a footnote, but that's not the reason I'm citing it.
The article also discusses the problems involving the new response to Intervention eligibility criterion for kids with learning disabilities and the over representation of African-American kids in special education. The portion of his article that I want to focus upon in the next part of this series of posts involves his persuasive argument that the courts and hearing officers are being too exclusive about the second prong of the IDEA eligibility criteria.