Toolbox Tuesday!! Do special ed kids have more rights than the others?

The Toolbox is a one day training program that focuses on the legal requirements for the discipline of students with disabilities.  One of the questions that lingers in the background of that type of training is: do some kids have “more rights” than others? Do the kids in the special education program and their parents have more rights than the other kids and their parents? After all, we have all these special rules and procedures that apply to the students who need special education services.  That’s why we have the Toolbox.  Does that mean that they have more rights?

To answer that question, I’m first going to divide “rights” into two categories.  There are procedural rights and substantive rights.

Students with disabilities and their parents unquestionably have more procedural rights than the other students and parents.  Our federal law spells out elaborate procedures that schools must follow for the students in special education. These procedures include notice, consent, the composition of ARD meetings, the content of an IEP.   A student with a disability has a right to an individualized educational program that is developed in accordance with the federal procedures.  The student’s parents are guaranteed a seat at the table for decisions about IEP content and placement.  A parent can obtain an independent evaluation at school district expense.  Parents can challenge school decisions through an independent hearing process not available to other parents.

And of course with disciplinary decisions, the law lays out other procedures (change of placement, manifestation determination, stay put).

None of this guarantees that students with disabilities will receive better services than their peers, nor that their parents will be happier.  But the procedures are in place and schools are required to follow them. This is why there is so much more paperwork and litigation in special education.

As far as substantive rights, I maintain that there is no distinction.  I do not believe that the law guarantees students with disabilities “more rights” than their peers in terms of the substantive right to an education.  All students have a right to a public education that is appropriate.  Our special education laws use specific language to describe that right (FAPE), but surely, all kids are entitled to an education that is appropriate.

However, the procedural rights enjoyed by parents of students with disabilities make that right to an education more enforceable.  If the parent of a general education student believes that the child has been poorly served by the school district, that parent has no legal recourse.   Courts do not recognize a cause of action for “educational malpractice.” But the parent of a student with a disability can enforce the right to a FAPE through the due process system, followed, if necessary, by a lawsuit.

School administrators want to serve every student appropriately, in a school environment that is safe and conducive to learning.  The Toolbox is a program designed to simplify the complex procedures that apply to the discipline of students with disabilities so that ALL kids will benefit appropriately from your services.

If you are interested in Toolbox training, let me hear from you.


Tomorrow: why you might want to use a plain paper bag as a job application form